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Full text of "A selection of cases and other authorities upon criminal law"

(Staxmii ICam ^rfyool ICihtaty 



Cornell University Library 
KF9218.B36 1915 



A selection of cases and other authoriti 



3 1924 020 139 089 




The original of tiiis bool< is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924020139089 



A SELECTION OF CASES 
AND OTHER AUTHORITIES UPON 

CRIMINAL LAW 



BY 

JOSEPH HENRY BEALE 

SOTALL PSOFE8SOB OF IjXW IN HABTABD UNITBB8ITT 



THIRD EDITION 



CAMBEIDGE 
HAEVAED UNIVERSITY PEESS 



i^H%nH 



Copyrighi, 1915, 
By Joseph Henry Bbalk 



^•1 



PREFACE 

TO THE THIRD EDITION. 



A EEABBANGEMBNT of courses in the Harvard Law School has 
taken out of the course on Criminal Law and included in a new 
course the topics of Causation, Justification, and Excuse. The 
chapters in which these topics were considered have therefore been 
removed from this book. This third edition is identical with the 
second, except that the chapters mentioned, viz., Chapters V, VIII, 
and IX, and part of Chapter III of the old edition, have been 
removed ; but this change has made necessary an entire renum- 
bering of the pages in this edition. 

Joseph Henby Beale. 

Cahbbidoe, January 1, 1915. 



TABLE OF CONTENTS. 



Pages. 

Chaptbk I. Introductory. 

Section I. Common Law and Statute 1 

Section II. Natm-e of Crime 22 

Chapter II. The Offence. 

Section I. Felonies ... . 33 

Section II. Misdemeanors . 39 

Section III. Public Torts 81 

Section IV. Incomplete Offences . . 102 

Section V. A Specific Intent as Part of an Offence ...... 133 

Section VI. Jurisdiction over an Offence . . ..;... 152 

Chapter III. The Offence: Modifying Circumstances. 

Section 1. Participation of a Public Officer 177 

Section II. Acquiescence of the Injured Party 182 

Section III. Consent of the Injiu-ed Party 192 

Section IV. Fault of the Injured Party 216 

Section V. Negligence of the Injured Party 226 

Section VI. Condonation 228 

Chapter IV. Culpability. 

Section I. What Crimes Require a Giiilty Mind 236 

Section II. The mens rea: Intent . . . 274 

Section III. The mens rea: Negligence .... 302 

Section IV. Concurrence of Offence and Guilty Mind . . 320 



Chapter V. Culpability: Modifying Circumstances. 

Section I. Insanity . . . 326 

Section II. Intoxication . 350 

Section III. Coercion . .... . . 361 

Section IV. Infancy: Incorporation . . 365 

Section V. Ignorance or Mistake 368 

Section VI. Impossibility . 378 

Section VII. Custom 382 

Chapter VI. Parties in Crime. 

Section I. Who are Parties 389 

Section II. Innocent Agents . . 409 

Section III. Joint Principals ... 412 



VI TABLE OF CONTENTS. 

Pages. 

Chapter VI. Parties in Crime (Contirmed). 

Section IV. Principals in the Second Degree . ... 415 

Section . V. Accessories . . 420 

Section VI. Acts done in Pursuance of a Common Design . 425 

Chapter VII. Chimes against the Person. 

Section I. General Principles . . 442 

Section II. Assault and Battery .... 444 

Section III. Rape 449 

Section IV. Murder . . . . 453 

Section V. Degrees of Murder . 467 

Section VI. Manslaughter 469 

Chapter VIII. Larceny. 

Section I. What Property is the Subject of Larceny 484 

Section II. Possession. 

(a) The Act of Assuming Possession . 504 

(6) Distinction between Possession and Custody . 519 

(c) Possession in case of Finding . . . 554 

(d) Tortious Possession 589 

Section III. Taking after Delivery. 

(o) .Larceny by Bailee . . 623 

(6) Larceny by Breaking Bulk, etc. .... . . 630 

Section IV. Taking with Consent. 

(o) What constitutes Consent . . . 640 

(6) Larceny by Trick . . . . 647 

(c) Delivery by Mistake . . 656 

Section V. Transfer of Title . ... 672 

Section VI. Animus Furandi .... ... 693 

Section VII. Aggravated Larceny. 

(a) Robbery and Larceny from the Person 731 

(6) Larceny from a Building . . . 733 

Chapter IX. Embbzzubment ; .. 738 

Chapter X. Obtaining Property by False Pretences. 

Section I. The Question of Title 750 

Section II. Property . 763 

Section III. The Pretence 757 

-Chapter XI. Receiving Stolen Property. 

Section I. The Receiving 794 

Section II. Stolen Property . 801 

Section III. Guilty Knowledge 813 

Chapter XII. Crimes against the Dwelling-House. 

Section I. Burglary . ... . . . . 816 

Section II. Arson 833 

Chapter XIII. Forgery . . 837 



TABLE OF CONTENTS. 



Vll 



Pages. 

Chaptee XIV. Criminal Conspiracy. 

Section I. Under Ancient Statutes 852 

Section II. Conspiracy in General 855 

Section III. Conspiracy and other Offences against Trade . . . 865 

Chapter XV. The Indictment. 

Section I. General Requisites of an Indictment 891 

Section II. Statement of the Crime 921 

Section III. Particular Allegations 926 

Section IV. Counts " 941 

Section V. Statutory Simplifications of Criminal Pleading . . . 951 

Chapter XVI. Former Conviction or Acquittal. 

Section I. Double Jeopardy 965 

Appendix ; . . 1007 



TABLE OF CASES. 



Adams v. S. 

C. ... 

R. i;.'(22 Q. B. D. 66) 

R. V. (R. & R. 225) 

R. V. (1 F. & F. 86) 
Alderman, C. v. 
Aldrioh v. P. 
Allen, S. V. 
Anon. (Comb. 46) 

(1 Cox, 250) 

(Dyer, 99 a) 

(Fost. 439) 

(Kel. 31) 

(Kel. 35) 

(2 Leon. 12) 

(3 Mod. 97) 

(8 Mod. 165) 

(12 Mod. 342) 

(Moore, 660) 

(R. & R. 489) 

(Y. B. 2 & 3 Ed. II. 120) 

(Y. B. 1 Ed. III. 16) 

(Y. B. 11 & 12 Edw. III. 640) 

(Lib. Assis. 137) 

(Lib. Assis. 137) 

(Y. B. 7 Hen. IV. 43) 

(Y. B. 4 Hen. VII. 5) 

(Y. B. 11 Hen. VII. 1) 

(Y. B. 13 Hen. VII. 10) 

(Y. B. 13 Hen. VII. 14) 

(Y. B. 19 Hen. VIII. 2) 
Armstrong, R. v. 
Articles of Inquest 
Asher, S. v. 
Ashton's Case 
Ashwell, R. V. 
Atcheson v. Everitt 
Atkinson, R. v. 



B. 



Bailey, R. v. 
Baker v. S. 
Baldwin, C. v. 

S.v. 







Pages. 


Pages. 


Ball, U. S. V. 


972 


698 


Bamber, R. v. 


378 


291 


Bancroft v. Mitchell 


25 


72 


Bank of New South Wales v. 




752 


Piper 


262 


813 


Banks, R. v. 


624 


968 


Bankus v. S. 


384 


516 


Bannen, R. o. 


410 


427 


Barker v. P. 


10 


63 


Barnard, R. v. 


759 


217 


Barnes, R. v. 


742 


817 


Barrow, R. v. 


207 


372 


Barry, C. v. 


507 


362 


Bass, R. V. 


538 


520 


Bazeley's Case 


530 


382 


Bean, C. v. 


924 


53 


Beaton, S. v. 


934 


389 


Beecham, R. v. 


716 


99 


Berry, C. v. 


746 


818 


Bingley, R. v. 


412 


926 


Birney v. S. 


267 


76 


Black, S. V. 


755 


52 


Blackham, R. v. 


289 


0) 484 


Blake, R. v. 


64 


361 


Botkin, P. V. 


175 


519 


Boyce, R. v. 


134 


607 


Boynton, C. v. 
Bradford, R. v. 


270 


608 


23 


833 


Bradlaugh, R. v. 


87 


415 


Bradshaw, R. v. 


212 


288 


Branworth, R. v. 


93 


486 


Breese v. S. 


419 


154 


Brennan v. P. 


978 


866 


Brig William Gray, The 


378 


324 


Brocheshevet v. Maren 


38 


425 


Brooks, C. V. 


380 


573 


Brown, R. v. (3 Salk. 189) 


22 


24 


R. V. (14 Cox, 144) 


422 


674 


S. V. 892 


, 961 




Bruce, R. v. 


289 




Bryan, R. v. 


761 




Buckmaster, R. v. 


677 


369 


Bunce, R. v. 


650 


94 


Burke, C. v. 


449 


846 


Burnett, R. v. 


100 


27 


Button, R. V. 


791 



TABLE OF CASES. 



G. 


jra^va. 


Eggington's Case 
Elder, P. v. 




184 
439 


Cabbage, R. v. 


701 


Esop, R. V. 




371 


CaUaghan, C. v. 


46 








Calvi, R. V. 


989 




F. 




Campbell, S. v. 


909 








Carr, R. v. 

Carrier|s Case 

Carter,'S. v. 

Carver, S. v. 

Case, R. v. 

Castro V. Queen 

Chamberlain, R. v. 

Cheafor, R. v. 

Chicago, M. & S. P. Ry., S. v. 


810 
630 
164 
61 
192 
941 
304 
488 
272 


Fabian v. Godfrey 
Faulkner, R. v. 
Fidling, R. v. 
Finlayson, R. v. 
Fitchburg R. R., C. v. 
Flanagan v. P. 
Fleener v. S. 
Flowers, R. v. 
Fnlpv R ■// 


37 
144 
819 
572 
948 
336 
229 
581 
593 


Chisholm v. Doulton 
Chissers, R. v. 


255 
520 


Foster, C. v. 
Francis, R. tJ. 




747 
731 


Choice V. S. 
Claasen v. U. S. 
Clair, C. V. 


358 

950 

1004 


Franklin, R. v.- 
Fray's Case 




290 

473 


Clarence, R. v. 


196 








Clayton, R. v. 


421 




G. 




Closs, R. V. 


837 








CoUberg, C. v. 


214 


Gamlen, R. v. 




351 


CoUins, R. V. 


103 


Gardner, P. v. 




610 


Colvin V. S. 


848 


R.v. 




705 


Coney, R. v. 


393 


Gessert, S. v. 




153 


Cook, R. V. 


39 


Gibney, C. v. 




65 


Coombs, S. v. 


605 


Glover v. C. 




118 


Cross, R. V. 


98 


Goodenow, S. v. 




376 


Crouther's Case 


45 


Goodhall, R. v. 




757 


Cruikshank, U. S. v. 


903 


Gore's Case 




140 


Crump V. C. 


882 


Goss, R. V. 




769 


R. V. 


704 


Gray, R. v. 




820 


CuUum, R. V. 


739 


Green, C. v. 
Grey's Case 




105, 968 
455 


D. 

Daley, C. v. 




Grimm v. IT. S. 




178 


364 




H. 




Damon, S. v. 


1000 






Damon's Case 


893 


Hadley v. S. 




465 


Davies, R. v. ' 


821 


C.v. 




398 


Davis, R. V. (14 Cox, 563) 


351 


Halfin V. 8. 




19 


(5 Cox, 237) 


928 


Hall, R. V. (3 C. 


&P. 409) 


370 


U. S. V. 


152 


R. V. (3 Cox, 245) 


715 


Deane, R. v. 


967 


Hall's Case 




98 


Delaval, R. v. 


92 


Hands, R. v. 




643 


Dickinson, R. v. 


703 


Harmon, R. v. 




76 


Dobbs's Case 


133 


Harkins, C. v. 




784 


Dodge, S. V. 


935 


Harmon, U. S. v 




287 


Dolan, R. v. 


801 


Harrington, C. v 




906 


Donaldson, S. o. 


877 


Hartnett, C. v. 




733 


Doody, R. V. 


350 


Haskins v. P. 




938 


Drew, C. V. 


776 


Hathaway, R. v. 




73 


Dykes, R. v. 


363 


Hawkins, R. v. 
Haynes, R. v. 




430 
329 


E. 




Hays, C. v. 




743 




Headge, R. v. 




738 


Eckert, C. v. 


81 


Hehir, R. v. 




584 


Edmonds v. S. 


510 


Hendry v. S. 




387 


Edwards, R. v. (13 Cox, 384) 


641 


Henry, C. v. 




850 


R. V. (8 Mod. 320) 


855 


Hersey, C. v. 




898 


Egan, R. v. 


319 


Hildebrand v. P. 




524 



TABLE OF CASES. 



XI 



Him V. S. 




901 


Holder, C. v. 




610 


Holland, R. v. 




226 


HoUoway, R. v. 




711 


Holmes's Case 




833 


Holt, S. V. 




60 


Hormed v. Hacon 




34 


Horton, S. v. 




293 


Hudson, R. v. 




218 


U. S. V. 




8 


Huggett's Case 




470 


Hugh, R. V. (Abbr. Plac. 19) 




38 


R. V. (Y. B. 30 & 31 Ed. I 


. 529) 34 


Hunt, C. V. 




870 


S.«. 




515 


Hurley, S. v. 




130 


Hurst, P. V. 




748 


I. 

Ingles, S. V. 




999 


Isaac's Case 




835 


Ivens, R. v. 




43 


Ives, S. V. 




811 


J. 






Jackson v. C. 




155 


S. ». 




40 


Jaffe, P. V. 




112 


James, C. v. 




637 


n.v. 




927 


Jennison, R. v. 




774 


Johnson v. S. 




314 


S.v. 


359 


,934 


Johnson's Case 




821 


Jones, R. v. (2 Ld. Raym. 1013) 


23 


R. V. (2 Str. 1146) ■ 




43 


Journeyman-Tailors, R. v. 




869 



K. 

Kanavan's Case 

Keefer, 'P. v. 

Keenan, S. v. 

Kelley, C. v. 

Kelly, R. v. 

Kennedy, C. v. (170 Mass. 18) 

C. V. (160 Mass. 312) 
Kennel v. Church 
Kew, R. V. 
Kilham, R. v. 
King V. P. 

C.J). 
Knapp, C. V. 
Knight, R. v. 
Kostenbauder, G. v. 



L. 



Xafferty, Ohio v. 
Lannan, C. v. 
Lamer, 'R. v. 



89 
431 

31 
958 
134 
119 
229 

33 
227 
750 

95 

84 
416 
151 
406 



1 

526 
789 



Lascelles v. 8. 
Latimer, R. v. 
Lavender, R. v. 
Ledgerwood v. S. 
Ledginham, R. v. 
Lee Kong, P. v. 
Leigh's Case 
Leighton, v. P. 
Le Mott's Case 
Leonard, C. v. 
Lester, C. v. 
Levett's Case 
Lewis, In re 

S.v. 
Libby, S. v. 
Lindsey v. S. 
Linkhaw, S. v. 
Little, R. V. 
Lombard's Case 
Loud, C. u. 
Lovell, R. V. 
Lowrey, C. v. 
Lucas, S. V. 
Lynn, R. v. 
Lyons, R. v. 



M. 

McCarty, S. ». 
McCord V. P. 
McDaniel's Case 
McDonald, C. v. 
McGowan, P. v. 
M'Growther's Case 
M'Naghten's Case 
Mace, S. v. 
Macloon, C. v. 
Madox, R. V. 
Maher v. P. 
Malin, Resp. v. 
Manney's Case 
Mansfield, R. v. 
Marshall, C. v. 
Martin, R. v. (R. & R. 196) 

R. V. (2 Moo. 123) 
Mash, C. V. 
Mason v. P. 
Maud, R. V. 
Memorandum (Kel. 52) 
Merry v. Green 
Meyer, P. v. 
Middleton, R. v 
Miller, R. v. 
Mills, P. V. 

R. V. 
Mink, C. V. 
Mitchell V. 8. 
Mitchum v. 8. 
Moore, P. v. 

R. V. 

S.o. 
Morfit, R. V. 



850 
148 
539 

13 
922 
108 
624 
468 
819 
814 
737 
368 
232 
1001 
929 
162 

87 
671 
867 
970 
641 
414 
429 

88 
820 



909 
222 
182 
107 
1002 
362 
326 
907 
166 
633 
478 
111 

52 
936 

18 
177 
211 
268 
824 

75 
409 
555 
613 
656 
796 
180 
759 
300 
6 
645 
446 
672 
321 
702 



xu 



TABLE OF CASES. 







Pages. 




R. 




Morly's Case 




469 






Pages. 


Morrill, C. v. 




220 


Ragg, R. V. 




769 


Morris, R. v. 




991 


Randolph, C. v. 




127 


Morris Run Coal Co. v. Barclay 




Raven, R. v. 




623 


Coal Co. 




888 


Ray, C. V. 




844 


Morrison, R. v. 




501 


Reed, R. v. (12 Cox, 1) 


382 


Morse v. S. 




320 


R. V. (6 Cox, 284) 


543 


P. ». 




721 


Renshaw, R. v. 




444 


Muoklow, R. V. 




654 


Resolution (And. 


114) 


818 


MuUaly v. P. 




498 


Reynolds v. U. S. 




286 


Myers v. S. 




266 


Richards, R. v. 
B.v. 




82 
333 




N. 




Richardson, R. v. 


(Leach, 387) 


389 






R. V. (6 C. & P. 335) 


794 


Napper, R. v. 




930 


Riley, R. v. 




603 


Nelson v. Rex 




718 


Ritson, R. V. 




840 


New Bedford Bridge, C. v. 


366 


Robins, R. v. 




536 


Newbury Bridge 


Q.v. 


923 


Robinson, R. v. 




753 


NichoUs, R. V. 




307 


Roby, C. V. 




995 


Noble, S. V. 




937 


Roderick, R. v. 
Rogers, Q. u. 




102 


Norris v. Buttingham 


37 




330 


Norton, C. v. 




782 


V.v. 




353 


Nerval, R. v. 




542 


Rothwell, R. V. 




477 


Note (Dyer 5 a) 




529 


Rowe, R. V. 




569 


(Y. B. 3 Hen. VII. 12) 


528 


Rubin, C. v. 




654 


(Y. B. 21 Hen. VII. 14) 


529 


Ruggles, P. V. 




85 








Ruloff V. P. 




425 








Ruperes v. Ashby 




39 




0. 




RussoU, S. V. 




925 


Olmstead, P. v. 




955 


Russett, R. V. 




685 


O'Malley, C. v. 


P. 


523 


Ryan, C. v. 


S. 


550 


Pardenton, R. v. 




101 


St. John, C. V. 




231 


Parks, P. V. 




402 


Salmon, R. v. 




306 


Parsons v. S. 




337 


Schmidt, R. v. 




805 


Patterson, S. v. 




223 


Searing, R. a. 




487 


Pear, R. v. 




647 


Selway, R. v. 




732 


Pearson's Case 




350 


Sern6, R. v. 




457 


Peaslee, C. v. 




122 


Serra v. Mortiga 




917 


Pembliton, R. v. 




141 


Sexton, S. v. 




931 


Perkins, C. v. 




928 


Seymour, R. v. 




49 


Perrigo, C. v. 




902 


Sharpe, R. v. 




274 


Phillips, C. V. 




422 


Sharpless, C. v. 




90 


Pierce, C. v. 




309 


R. «. 




640 


Pigot, R. V. 




23 


Shaw, C. V. 




497 


Plant, R. V. 




989 


Sheppard, R. v. 




139 


Poulterer's Case 




852 


Sherras v. De Rutzen 


259 


Powers, R. v. 




609 


Shickle, R. v. 




492 


Poyser, R. v. 




635 


Silsbee, C. v. 




41 


Pratt, R. V. 




627 


Simmons v. U. S. 




986 


Pray, C. v. 




895 


Skerrit, R. v. 




415 


Preston, R. v. 




564 


Slattery, C. v. 




228 


Prince, R. v. (L. 


R. 2 C. C. 154) 


275 


Slowly, R. V. 




521 


R. V. (L. R. 


1 C. C. 150) 


674 


Smith V. P. (53 N 


. Y. Ill) 


652 


Prius, C. V. 




861 


(25 lU. 17) 




862 


Pywell, R. V. 




858 


C. i;. (6 Cush. 80) 
(111 Mass. 429) 


95 
735 




Q. 




R. V. (1 Stra. 704) 


97 






(Dears. 559) 




135 


Quinn v. P. 




825 


(1 Cox, 260) 




365 



TABLE OF CASES. 



Xlll 



Smith, R. V. (Dears. 494) 


796 


Tuck, C. V. 


947 


S.v. 


460, 932 


Tucker, C. v. 


836 


U. S. V. 


7 


Tunnard's Case 


632 


Solomons, R. v. 


682 


Turner, R. t. 


856 


Spies V. P. 


432 


Tyrrell, R. v. 


403 


Spurgeon, R. v. 


704 






Stanley v. S. 


617 


V. 




Starin v. P. 


423 




Steams, S. V. 


29 


Vandercomb's Case 


987 


Stedman, R. v. 


473 


Vane's Case 


930 


SteimUng, C. v. 


600 


Vaux's Case 


965 


Stephens, R. v. 


252 


Vick V. S. 


386 


U. S. V. 


115 






Stephenson, C. v. 


823 






n.v. 


54 


W. 




Stevens v. Dimond 


20 


Wade, R. v. 


794 


Steward, C. v. 


822 


Wakeling, R. v. 


758 


Stone, C. V. 


940 


Walker v. S. 


830 


Stonehouse, R. v. 


22 


■P.v. 


360 


Stratton, C. v. 


209 


Walsh V. P. 


125 


U.v. 


216 


U.v. 


504 


Swindall, R. v. 


390 


Warburton, R. v. 


859 






Ward V. P. 


607 


T. 




Watson, R. v. 


539 




Watts, R. V. 


489 


Taylor, C. v. 


69 


Webster, C. v. 


461 


S. V. (70 Vt. 1) 


137, 441 


U.V. 


695 


(3 Dutch. 117) 


494 


Welsh, R. V. 


475 


Taylor's Case 


51 


Wemyss v. Hopkins 


997 


Teischer, R. v. 


67 


West, R. V. 


568 


Thomas, P. v. 


754 


Wheatly, R. v. 


77 


Thompson v. S. 


512 


Whitcomb, C. v. 


783 


C.v. 


375 


White, C. V. 


445 


n.v. 


473 


R. V. (6 Cox, 213) 


505 


Thristle, R. v. 


625 


(1 F. & F. 665) 


814 


Thurborn, R. v. 


658 


Wilkinson, R. v. 


693 


Tibbits, R. v. 


56 


Willard, C. v. 


404 


Tideswell, R. v. 


688 


WilUams, R. v. 


136 


Tinkler, R.<;. 
Titus, C. V. 


373 


Wilson, R. u. 


927 


570 


Wing, C. V. 


73 


ToUett, R. V. 


540 


Wispington v. Edlington 


33 


ToUiver, C. v. 


932 


Wody, R. V. 


485 


Tolson, R. V. 


236 


Wolfstein v. P. 


668 


Tomson, R. v. 


454 


Woodward, R. v. 


799 


Topolewski v. 8. 


186 


Wright's Case 


209 


Townley, R. v. 


589 


Wyckoff, S. V. 


157 


Towse, R. V. 


374 






Traverse, C. v. 


933 






Trebilcock, R. v. 


707 


Y. 




Trono v. U. S. 


980 


Yong's Case 


454 



" Nothing is more common than to hear those who have taken 
only a superficial view of the Crown Law charge it with number 
less hardships and undistinguishing rigor; whereas those who 
have more fully examined it agree that it wants nothing to make 
it admired for clemency and equity, as well as justice, but to be 
understood. It is so agreeable to reason, that even those who 
suffer by it cannot charge it with injustice ; so adapted to the 
common good as to suffer no folly to go unpunished, which that 
requires to be restrained ; and yet so tender of the infirmities of 
human nature, as never to refuse an indulgence where the safety 
of the public will bear it. It gives the Prince no power, but of 
doing good ; and restrains the people from no liberty, but of 
doing evil." — Preface to Hawkins' Pleas of the Crown. 



CASES ON CRIMINAL LAW. 



CHAPTER I. 
INTRODUCTORY. 

SECTION I. 
Common Law and Statute, 

OHIO V. LAFFERTY. 

Court of Common Plras, Ohio. 1817. 

[Beported Tappan, 81. J 

Lapfertt was convicted, on three several indictments, for selling 
unwholesome provisions. 

Wright, for the defend-ant, moved, in arrest of judgment " for that 
there is no law of this state against selling, unwholesome provisions." 
He observed, that the indictment was bottomed upon the common law 
of England, which was not in force in this state, it never having been 
adopted by our constitution, or recognized by our laws or judicial de- 
cisions. 

Tappan, President. The question raised on this motion, whether 
the common law is a rule of decision in this state? is one of very great 
interest and importance, and one upon which contradictory opinions 
have been holden both at the bar and upon the bench. 

No just government ever did, nor probably ever can, exist without 
an unwritten or common law. By the common law is meant those 
maxii tts,— iM-i noipl es , aad^ prms of judicial p roceeding which have no 
written law to prescribe or warrant themj, but which, fo unded on the 
laws of nature and the dictates of reason, hav e, bj- us age and custom, 
"b ecome inte rwTJven wrtir tfie~wntten Taws, a nd, by such incorporation,* 
form a part ofTSe municipal code of each state or nation which has 
emerged from the loose and erratic habits of savage life to civilization, 
order, and a government of laws. 

For the forms of process, indictment, and trial, we have no statute 
law directing us ; and for almost the whole law of evidence, in criminal 
as well as in civil proceedings, we must look to the common law, for 



2 OHIO V. LAFFEETY. CHAP. I- 

we have no other guide. Can it be said, then, that the commou law is 
not in force when, without its aid and sanction, justice cannot be ad- 
ministered ; when even the written laws cannot be construed, explained, 
and enforced without the common law, which furnishes the rules and 
principles of such construction ? 

Wfiami^-ga-fuxtherT-ftael-fiay-that-Jiot^only is the common law neces-_ 
saTilyinJoree-Jifir6r-b«t-thatJ±S-ji^^ 

wntteiTTawsT for it not only furnishes the r ules andprincipies by 
wkijch the statutelaws~OTr-C5nstrueo[7But it ascertaTn8~and determi nes 
tbeva MitylaJid-ia itfagrMiy JC::^m. It is, •therefore,~tFatXord Hobart 
said that a statute law againstreasSHT'as to make a man a judge in his 
own cause, was void. 

As the laws of nature and reason are necessarily in force in every 
community of civilized men (because nature is the common parent, and 
leason the common guardian of man), so with communities as with 
individuals, the right of self-preservation is a right paramount to the 
institution of written law ; an d hence _the_maxijii^ the ffftfcfy nf the 
'Hople is the supreme law, needs not the sanction of a cons titution o r 

-sLaluLe to gTveTTvalidity^and force. But it cannot have validity and 
fS r&c, as law r-uatess- tfae-JTidTCTal—tffbunals have power to punish all 

• such actions as directly tend to jeopardize that safety ; unless, indeed, 
the judicial tribunals are the guardians of public morals, and the con- 
servators of the public peace and order. Whatever acts, then, are 
wicked and immoral in themselves, and directly tend to injure the 
community, are crimes against the community, which not only may, 
but must, be repressed and punished, or government and social order 

(cannot be preserved. It is this salutary principle of the common law 
which spreads its shield over society to protect it from the incessant 
activity and novel inventions of the profligate and unprincipled, — 
inventions which the most perfect legislation could not always foresee 
and guard against. 

But although the common law in all countries has its foundation in 
reason and the laws of nature, and therefore is similar in its general 
principles, yet in its application it has been modified and adapted to 
various forms of government; as the different orders of architecture, 
having their foundation in utility and graceful proportion, rise in vari- 
ous forms of symmetry and beauty, in accordance with the taste and 
judgment of the builder. It is also a law of liberty ; and hence we 
find that when North America was colonized by emigrants who fled 
from the pressure of monarchy and priestcraft in the old world to enjoy 
freedom in the new, they brought with them the common law of Eng- 
land (their mother country), claiming it as their birthright and inher- 
itance. In their charters from the crown they were careful to have it 
recognized as the foundation on which they were to erect their laws 
and governments ; not more anxious was ^neas to secure from the 
Ijurning ruins of Troy his household gods, than were these first settlers 
of America to secure to themselves and their children the benefits of 



SECT. I.] OHIO V. LAFFEETT. 3 

the common law of England. From thence, through every stage of the 
colonial governments, the common law was in force so far as it was found 
necessary or useful. "When the revolution commenced, and independ- 
ent state governments were formed ; in the midst of hostile collisions 
with the mother country, when the passions of men were inflamed, and 
a deep and general abhorrence of the tyranny of the British govern- 
ment was felt, the sages and patriots who commenced that revolution, 
and founded those state governments, recognized in the common law a 
guardian of liberty and social order. The common law of England has 
thus alwaj's been the common law of the colonies and states of North 
America ; not, indeed, in its full extent, supporting a monarchy, aris- 
tocracy, and hierarchy, but so far as it was applicable to our more free 
and happy habits of government. 

Has society been formed and government instituted in Ohio on dif- 
ferent principles from the other states in this respect? The answer 
to this question will be found in our written laws. 

The ordinance passed by the congress of the United States on the 
13th of July, 1787, "for the government of the territory of the United! 
States North "West of the river Ohio," is the earliest of our written ' 
laws. Possessing the Northwestern Territory in absolute sovereignty, 
the United States, by that instrument, provide for the temporary go\- 
ernment of the people who may settle there ; and, to use the language 
of that instrument, " for extending the fundamental principles of civil 
and religious liberty, which form the basis whereon these republics, 
their laws and constitutions, are erected ; to fix and establish those 
principles as the basis of all laws, constitutions and governments, 
which forever hereafter shall be formed in the said territory ; to pro- 
vide also for the establishment of states and permanent government 
therein ; and for their admission to a share in the federal councils, on 
an equal footing with the original states, at as early periods as may be 
consistent with the general interest," it was ordained and declared, 
"that the inhabitants of the said territory shall always be entitled to 
the benefits of the writ of habeas corpus, and of the trial by jury ; of a 
proportionate representation of the people in the legislatur e, and or f 
pidici al, proeeedinas accordinci to the course of the common law," — as 
one of the articles of compact between the original states, and the 
people and states in the said territory, to i-emain forever unalterable 
unless by common consent. Under this ordinance we purchased lands 
and made settlements in this then Northwestern Territory ; we be- 
came voluntary parties to this contract, and made it, by our own act, 
what it was intended to be, " the basis of all our laws, constitutions 
and government-" — and thus the common law became here, as it had 
become in the earliest colonies, the foundation of our whole sj'stem 
of jurisprudence. 

That these articles of compact were of perpetual obligation upon the 
people and states to be formed in the territory, unless altered by the 
mutual consent of such states and of the original states, is a position 



4 OHIO V. LAFFERTT. [CHAP. I. 

which I have never heard controverted ; 3-et it may not be useless to 
advert to express recognitions of it by both the contracting parties. 
First, the United States, by the act of congress entitled "an act to 
enable the people of the eastern division of the territory North West of 
the river Ohio, to form a constitution and state government, and for 
the admission of such state into the Union, on an equal footing vrith the 
original states, and for other purposes," under the authority of which 
Ohio became an independent state, authorized the people of said divis- 
ion to form a constitution and state government, " provided the same 
shall be republican, and not repugnant to the ordinance of the 13th of 
July, 1787, between the original states and the people and states of 
the territory North West of the river Ohio." Section 5th. Second, 
the people of Ohio, by the preamble to their state constitution, declare, 
that they ordain and establish that constitution, " consistent with the 
constitution of the United States, the ordinance of congress of 1787, 
and the law of congress." 

The common law being a part of the existing system of jurisprudence 
at the time when the state government was formed, and its continuance 
being expressly provided for by the 4th section of the last article or 
schedule to this constitution, which declares that " all laws and parts 
of laws now in force in this territory, not inconsistent with this consti- 
tution, shall continue and remain in full effect until repealed b3' the 
legislature." We will next examine the power of this court to en- 
force it. 

The 1st section of the 3d ai'ticle of tlie constitution declares that 
" the judicial power of the state, both as to matters of law and equit3-, 
shall be vested in a supreme court, in courts of common pleas for each 
count}'," etc. The 2d section declares that the supreme court '' shall 
have original and appellate jurisdiction, both in common law and 
chancery, in such cases as shall be directed by law ; " and the 3d 
section, that " the court of common pleas shall have common law and 
chancer}- jurisdiction in all such cases as shall be directed by law." 
These sections refer to future legislative provision to mark the bound- 
aries of jurisdiction between the court of common pleas and the 
supreme court, and to fix their extent; but they do not refer to such 
provision to point out the particular wrongs which nia\' be redressed 
by petition in equitj', by private suit, or by criminal prosecution. Such 
has been the uniform construction of these sections by the legislature 
since the constitution was formed, as must be evident from the fact 
that no statute law has ever been made or projected to detail those 
wrongs, private or public, which the judicial tribunals were to redress 
by virtue of their chancery powers, or " according to the course of the 
common law." Such a statute would indeed be a phenomenon, the 
result of a more perfect legislation than man has yet attained to. 

But it has been urged that the 4th section of the 3d article is tlie 
only part of the constitution which gives this court jurisdiction in 
criminal cases, and that it expressly refers to future statutory provis- 



SECT. I.J OHIO V. LAFFERTY. 5 

ion, to point out the cases in which such jurisdiction may be exercised. 
The language of this section is : '^ The judges of the supreme court 
and courts of common pleas shall have complete criminal jurisdiction 
in such cases, and in such manner as may be pointed out by law." 

The laws in existence at the time when the constitution was formed, 
November 29, 1802, and the state government commenced (beside 
those of the United States), were the common law, the statutes of 
other states adopted by the governor and judges of the territory, an<i 
the acts of the territorial legislatures, — all which were continued in 
force by the constitution. This section of the constitution, by giving 
jurisdiction in matters of crime, "in such cases and in such manner as 
man he pointed out hy law" must mean, in such cases and in such 
manner as may be now or hereafter pointed out by law ; for it must 
either intend to give the court jurisdiction according to the then ex- 
isting laws, or to require of the legislature an immediate and perfect 
criminal code, and so operate as a repeal of the former. It could not 
intend the latter, because neitlier a convention or legislature can ever 
be construed to have exceeded their power, unless such intent is clearly 
and positively expressed ; and so far is such intent from being ex- 
pressed, by the section referred to, that the utmost latitude of con- 
struction leaves the intent that way ambiguous. It must intend the 
former: 1. Because the convention who framed the constitution were 
limited in their powers by the ordinance and law of congress ; they liad 
not power to deprive the people of Ohio of the benefit of judicial pro- 
ceedings according to the course of the common law. 2. Because the 
convention intended the constitution to be consistent with the ordi- 
nance and law. 3. Because the constitution expressly continues in 
force all existing laws. 

Such seems ever to have been the opinion of the legislature of this 
state ; for the first general assembl}- whicii sat under the constitution 
passed an act to fix the extent of jurisdiction in the courts, and gave 
to the common pleas " cognizance of all crimes, offences, and misde- 
meanors, the punishment whereof is not capital." Stat. Laws, vol. i, 40. 
But neither the first or second general assembly deemed it necessary 
to make an}' material alteration in the criminal code they had received 
from the territorial government ; nor had the state any other criminal 
laws until the first of August, 1805. And when the state courts super- 
seded the territorial, they were required, " agreeable to their respective 
jurisdictions," to "take cognizance of all judgments, causes, and mat- 
ters whatsoever, whether civil or criminal, that are now pending, unde- 
termined or unsatisfied," in the territorial courts ; and they were 
"authorized and required to hear and decide upon the said matters." 
Stat. Laws, vol. i, 50. In prosecutions at common law, then depending* 
in the territorial courts, the state courts were thus directed to take cog- 
nizance, to hear and decide upon them, " according to the course of the 
common law." 

But suppose that the position is a correct one, that the principles of 



6 MITCHELL V. STATE. [CHAP. I. 

the commoE law have no force or authority ia this state, and what are 
the consequences? They are these: that there are no legal forms of 
process, of indictments, or trial; there is no law of evidence, and the 
statute laws cannot be enforced, but must remain inoperative from the 
uncertain signification of the terms used in defining criminal offences. 
Beside, the constitution gives jurisdiction to this court in criminal 
J matters, "in such cases and in such manner as may be pointed out by 
law ; " and as we have no statute pointing out the manner in which 
such jurisdiction shall be exercised, the consequence follows that it 
cannot be lawfully exercised in an3' manner whatever. 

On the whole, therefore, it may be concluded that, were the written 
laws wholly silent on the subject, the principles and maxims of the 
common law must, of necessity, be the rule and guide of judicial decis- 
ion in criminal as well as in civil cases ; to supply the defects of a 
necessarily imperfect legislation, and to prevent " the will of the judge, 
that law of tyrants," being substituted in the room of known and 
settled rules of law in the administration of justice. 

And that by the ordinance of congress, the constitution and laws of 
the state, a common-law jurisdiction in criminal cases is established and 
vested in this court. The motion in arrest is, therefore, overruled. 

The defendant was fined fifty dollars in each case, with costs. 



MITCHELL V. STATE. 

Supreme Court of Ohio. 1884. 

[Reported 42 Ohio State, 383.] 

Oket, J.* The following positions are shown by the authorities to 
be impregnable. 

1. In Ohio, as under the federal government (U. S. v. Hudson, 7 Cr. 
32 ; U. S. V. Coolidge, 1 Wheat. 415 ; U. S. v. Britton, 108 U. S. 
197) we have no common-law ofi'ences. No act, however atrocious, 
can be punished criminally, excep't in pursuance of a statute or ordi- 
nance lawfully enacted. This proposition was not established without 
prolonged discussion. In Ohio v. Laffer.ty, Tappan, 81 (1817), it was 
held in an able opinion by Judge Tappan, that common-law crimes are 
punishable in Ohio; but Judge Goodenow, a member of this court 
under the former constitution, in his work entitled " Historical Sketches 
of the Principles and Maxims of American Jurisprudence, in Contrast 
with the 'Doctrines of the English Common Law, on the Subject of 
Crimes and Punishments," (1819), completely refuted the soundness of 

1 Only so much of the case as discusses the province of the common law in Ohio is 
given. 



SECT. I.] UNITED STATES V. SMITH, 7 

that view, and it is now perfectly well settled that Ohio v. Lafferty is 
not law. Key v. Vattier, 1 Ohio, 132, 144 ; Winn v. State, 10 Ohio, 
345 ; Vanvalkenburgh v. State, 11 Ohio, 404 ; Allen v. State, 10 Ohio 
St. 287,' 301 ; Smith v. State, 12 Ohio St. 466, 469 ; Knapp v. Thomas, 
39 Ohio St. 377, 385. 

2. In order that this statement may not mislead, it is proper to say, 
that while the rule is well settled that a statute defining a crime and 
prescribing punishment therefore must be strictly construed (Denbow 
V. State, 18 Ohio, 11 ; Hall v. State, 20 Ohio, 1 ; Shultz v. Cambridge, 
38 Ohio St. 659) ; still, where the legislature, in defining a crime, adopts 
the language employed by writers of recognized authority in defining 
the crime at common law, the presumption is that it was intended the 
commission of acts which at common law would constitute such crime, 
should constitute a crime under the statute, and the statute will be so 
construed. Accordingly it was held in Ducher y. State, 18 Ohio, 308, 
that where the defendant obtained entrance into a house by fraud, with 
intent to steal, he entered "forcibly;" and, on the same principle, it 
was held in Turner v. State, 1 Ohio St. 422, that where, b}' putting a 
person in fear, money is taken, not from his person, but from his 
presence, the money being under his immediate control, the crime of 
robbery is shown, within the meaning of the statute which punishes 
taking money " from the person of another." * 



UNITED STATES v. SMITH. 
Circuit Coubt of the United States. 1792. 

[Report 6 Dane's Abridgment, 718]. 

Four indictments at common law against the defendants for counter- 
feiting bank bills of the Bank of the United States, passing them, and 
having tools to counterfeit, etc. Smith was found guilty of passing 
bank bills of the said bank, counterfeited. 

1 See to the same effect, Hartford v. State, 96 Ind. 461 ; Estes v. Carter, 10 la. 400 ; 
Pitcher v. People, 16 Mich. 142 ; Ex parte Meyers, 44 Mo. 279 ; State v. De Wolfe, 
67 Neb. 321 ; State v. Gaunt, 13 Or. 115. In a few states the crime must not only 
be made punishable but must also be defined by statute : Williams v. State, 18 Ga. 
356 ; State v. Young, 55 Kan. 349. 

The criminal law of England was adopted by statute in Texas. Chandler v. State, 
2Tex. 305. But it is now provided that noact shall be a crime unless it is so provided 
by statute. Ex parte Bergen, 14 Tex. App. 52. 

In Louisiana the common law has also been adopted by statute ; but the legislature 
mast declare and define all crimes. State v. Gaster, 48 La. Ann. 636. — En 



8 UNITED STATES V. HUDSON. [CHAP. 1. 

Parsons moved in arrest of judgment, because there was no federal 
statute on the subject ; hence only an offence at common law ; and the 
state courts exclusively have jurisdiction of these offences. 

The Court held, the act incorporating the bank of the United States 
was a constitutional act, and that by the Constitution of the United 
States the federal courts had jurisdiction of all causes or cases in law 
and equity, arising under the said constitution and laws of the United' 
States ; that this was a case arising under those laws, for those bills 
were made in virtue thereof, though there was no statute describing or 
punishing the offence of counterfeiting them ; and therefore to counter- 
feit them was a contempt of and misdemeanor against the United 
States, and punishable by them as such. 



UNITED STATES v. HUDSON. 
Supreme Court op the United States. 1812. 

[Reported 7 Cranch, 32.] 

This was a case certified from the Circuit Court for the District of 
Connecticut, in which, upon argument of a general demurrer to an in- 
dictment for a libel on the President and Congress of the United States, 
contained in the " Connecticut Currant " of the 7th of May, 1806, charg- 
ing them with having in secret voted two millions of dollars as a pres- 
ent to Bonaparte for leave to make a treaty with Spain, the judges of 
that court were divided in opinion upon the question, whether the Cir- 
cuit Court of the United States had a common-law jurisdiction in cases 
of libel. 

Pinkney, Attorney-General, in behalf of the United States, and 
Dana, for the defendants, declined arguing the case. 

The Court having taken time to consider, the following opinion was 
delivered (on the last day of the term, all the judges being present) by 
Johnson, J. 

The only question which this case presents is, whether the Circuit 
Courts of the United States can exercise a common-law jurisdiction in 
criminal cases. We state it thus broadly because a decision on a case 
of libel will apply to evervjasg" in Which jun'sdictiotr la nuL t'ciulud la 



tlisae- flftui ' ts bj ^gtatUTeT 

Although this qUft^ion is brought up now for the first time to be 
decided by this court, we consider it as having been long since settled 
in public opinion. In no other case for manj^ years has this jurisdic- 
tion been asserted ; and the general acquiescence of legal men shows 
the prevalence of opinion in favor of the negative of the proposition. 



SECT. I.J UNITED STATUS V. HUDSON. 9 

The course of reasoning which leads to this conclusion is simple, 
obvious, and admits of but little illustration. The powers of the gen- 
eral government are made up of concessions from the several States, 
— whatever is not express^ given to the former, the latter exprosslj^ 
reserve. The judicial power of the United States is a constituent part 
of those concessions, — that power is to be exercised bj' courts organ- 
ized for the purpose, and brought into existence by an effort of the 
legislative power of the Union. Of all the courts which the United 
.States may, under their general powers, constitute, one only, the Su- 
preme Court, possesses jurisdiction derived immediately from the Con- 
stitution, and of which the legislative power cannot deprive it. All 
other courts created by the general government possess no jurisdiction 
but what is given them by the power that creates them, and can be 
vested with none but what the power ceded to the general government 
will authorize them to confer. 

It is not necessary to inquire whether the general government, in 
any and what extent, possesses the power of conferring oh its courts 
a jurisdiction in cases similar to the present. It is enough that such 
jurisdiction has not been con ferred bj' any legislative a ?t y if it doc a not - 
sXSSutt-ttrthose courts as « 7?rr:-, ;jii; ^j' iha\y ar€^VM^n 

And such is the opinion of the majority of this court ; for the power 
which Congress possess- to create courts of inferior jurisdiction neces- 
sarily implies the power to limit the jurisdiction of those courts to par- 
ticular objects ; and when a court is created and its operations confined 
to certain specific objects, with what proprietj- can it assume to itself 
a jurisdiction much more extended, in its nature very indefinite, appli- 
cable to a great variety of subjects, varying in every State in the 
Union, and with regard to which there exists no definite criterion of 
distribution between the district and Circuit Courts of the same 
district? 

The only ground on which it has ever been contended that this 
jurisdiction could be maintained is, that upon the formation of an}' 
political body an implied power to preserve its own existence and pro- 
mote the end and object of its creation necessarilj' results to it. But 
without examining how far this consideration is applicable to the pecu- 
liar character of our Constitution, it may be remarked that it is a prin- 
ciple bj' no means peculiar to the common law. It is coeval probably 
with the first formation of a limited government, belongs to a system 
of universal law, and may as well support the assumption of many 
other powers as those more pecuUarly acknowledged by the common 
law of England. 

But if admitted as applicable to the state of things in this country, 
the consequence would not result from it which is here contended for. 
If it may communicate certain implied powers to the general govern- 
ment, it would not follow that the courts of that government are vested 
with jurisdiction over any particular act done by an individual in sup- 
posed violation of the peace and dignity of the sovereign power. The 



10 BARKEK V. PEOPLE. [CHAP. I. 

legislative authority of the Union must first make an act a crime, affix 
a punishment to it, and declare the court that shall have jurisdiction 
of the offence. 

Certain implied powers must necessarily result to our courts of jus- 
tice from the nature of their institution ; but jurisdiction of crimes 
against the State is not among those powers. To fine for contempt, 
imprison for contumacj-, enforce the observance of order, etc., are 
powers which cannot be dispensed with in a court, because they are 
necessary to the exercise of all otliers ; and so far our courts no doubt 
possess powers not immediately derived from statute ; butjJI-esewise 
nf j^]-i"'''*<''t ^llrTs^th^iki n in commo n-law casesjK&- aro a£.^ptEton_is not 
within their implied powers.-' "^ 



BARKER V. PEOPLE. 
Court op Erkors, New Yokk. 1824. 
[Reported 3 Cowen, 686.] 

Error to the Supreme Court. In February, 1822, Jacob Barker, 
the plaintiff in error, was indicted in the Court of General Sessions of 
the Peace, of the city and county of New York, for sending a challenge 
to David Rogers to fight a duel. The indictment contained five counts ; 
the first four ofwhich alleged the oflTence to have been committed by 
Barker in the city of New York, on various days, in the months of 
January and February, 1822, " against the form of the statute in such 
case made and provided," being founded on the act "to suppress 
duelling," passed the 5th of November, 1816. The fifth count was for a 
similar offence at common law. The plaintiff in error was tried on the 
indictment, at the Court of General Sessions, held in the city of New 
York, in May, 1822. The jujc^;rendefad-«^seneral verdict of guilty, 
and the District Attorney having entered a twii^-pfoseqiekjierMie fifth 
count (for the offence at common law), the Court, thereupon, gave 
judgment that the plaintiff in error, " for the offence aforesaid, as 
charged in the first, second, third, and fourth counts of the said indict- 
ment, whereof he is convicted, be incapable of holding, or being elected 
to any post of profit, trust, or emolument, civil or military, under the 
State of New York." 

A writ of error was brought, on this judgment, to the Supreme Court, 
which, in January term, 1823, affirmed the judgment of the General 

1 The common law defines the terms and prevails in all questions except Jurisdiotion 
to punish for crimes, U. S. v. Carll. 105 U. S. 611. 

The common law as to crime prevails in the District of Columbia. Tyner u U S 
23 App. D. C. 324. — Ed. • • ■• 



SECT. I.] BAKKEB V. PEOPLE. 11 

Sessions. {Vide 20 John. Rep. 457 S. C, tvhich contains the reasons 
assigned to this Court in support of the judgment.) ^ 

Sanford, Chancellor. The first section of the act of the fifth of 
November 1816, to suppress duelling, prescribes, that "the person 
convicted shall be incapable of holding or being elected to anj' post 
of profit, trust, or emolument, civil or military, under this state : " 
and the obiectiea-ju w made is. that t hiH--pTrptahmQ]]j|ia inconsistent 
withthejjaastitution. 

■"THeconstitution of the United States provides that cruel and unusual 
punishments shall not be inflicted. The power of the legislature in 
the punishment of crimes is not a special grant, or a limited authority 
to do any particular thing, or to act in any particular manner. It is a 
part of " the legislative power of this state," mentioned in the first 
sentence of the constitution. It is the sovereign power of a state 
to maintain social order by laws for the due punishment of crimes. It 
is a power to take life, and liberty, and all the rights of both, when the 
sacrifice is necessary to the peace, order, and safety of the community. 
This general authority is vested in the legislature, and it is one of the 
most ample of their powers, its due exercise is among the highest of 
their duties. When an offender is imprisoned, he is deprived of the 
exercise of most of the rights of a citizen ; and when he suffers death, 
all his rights are extinguished. The legislature have power to prescribe 
imprisonment or death as the punishment of any offence. The rights 
■of a citizen are thus subject to the power of the state in the punishment 
of crimes ; and the restrictions of the constitution upon this, as upon 
all the general powers of the government, are, that no citizen shall be 
deprived of his rights, unless bj' the law of the land or the judgment of 
his peers, and that no person shall be deprived of life, liberty, or 
propertj', without due process of law. 

The constitution has, in one case, limited punishment. When an oflBcer 
■of the state is convicted upon impeachment, the judgment cannot ex- 
tend farther than removal ffom office and disqualification to hold office. 
This provision stands here a restriction, not an authority. As the pun- 
ishment is not to extend farther than removal and disqualification, the 
sense of the terms, and the known course of proceedings in the country 
from which we derive the history and practice of impeachments, both 
show that tills provision is a mere limitation of a greater power, a 
power to inflict other punishments, as well as removal and disqualifica- 
tion. Impeachments of public officers, a peculiar species of accusation 
made and tried in a peculiar manner, are to extend no farther in their 
effect than to discharge an officer from his trust, and to render him 
incapable of holding oflice ; but if the cause for which the officer is thus 
punished is a public offence, he may be also indicted, tried, and pun- 
ished according to law ; the constitution leaving the definition of the 
offence and its particular punishment in this ease, as in all the others, 

1 Arguments of counsel and parts of the opinion of the court are omitted. — Ed. 



12 BARKER V. PEOPLE. [CHAP. I. 

to the general power of the legislature. This part of the constitution 
concerning judgment on impeachments is therefore a limitation of the 
power of the court for the trial of impeachments, and not a restriction, 
upon the general power of tiie legislature over crimes. 

The power of the state over crimes is thus committed to the legisla- 
ture without a defiuitlon of any crime, without a description of any 
punishment to be adopted or to be rejected, and without any direction 
to the legislature concerning punishments. It is, then, a power to pro- 
duce the end by adequate means ; a power to establish a criminal code, 
with competent sanctions; a power to define crimes and prescribe- 
punishments by laws in the discretion of the legislature. 

But though no crime is defined in the constitution, and no species of 
punishment is specially forbidden to the legislature, yet there are nu- 
merous regulations of the constitution which must operate as restrictions 
upon this general power. The whole constitution must be supported, 
and all its powers and rules must be reconciled into concord. A law 
which should declare it a crime to exercise any fundamental right of the 
constitution, as the right of suffrage, or the free exercise of religious 
worship, would infringe an express rule of the system, and would there- 
fore not be within the general power over crimes. Particular punish- 
ments would also encroach upon rules and rights established by the 
constitution. Though the legislature have an undoubted power to 
prescribe capital punishment and other punishments which produce a 
disability to enjoy constitutional rights, yet ' a mere deprivation of 
rights would, even as a punishment, be, in many eases, repugnant to 
rules and rights expressly established. Many rights are plainly ex- 
pressed, and intended to be fundamental and inviolable in all circum- 
stances. A law enacting that a criminal should, as a punishment for 
his offence, forfeit the right of trial by jury, would contravene the 
constitution ; and a deprivation of this right could not be allowed in 
the form of a punishment. Any other right thus secured, as universal 
and inviolable, must equally prevail against the general power of the 
legislature to select and prescribe punishments. These rights are" se- 
cured to all ; to criminals as well as to others ; and a punishment 
consisting solely in the deprivation of such a right would be an evident 
infringement of the constitution. Any punishment operating as an 
infringement of some rule thus expressly established, or some risjht 
thus expressly secured, would be unconstitutional ; and all punishments 
which do not subvert such rules and riglits of the constitution are 
within the scope and clioice of the legislative power. 

Butwhileraany rights are consecrated^iis-iHtiKersal and inviolable, 
t jie right of'eIegti»a^r"t!«- «gee4aeiS?l!S«^^»^^ It is not one of the 

express rules of the constrtution, and is not declared as a right, or men- 
tioned in termt as a principle, in any part of the instrument. 
Important as this right is, it stands, as the right to life itself stands, 
subject to the general power of the legislature over crimes and 
punishments. 



■SECT. I.] LEDGERWOOD V. STATE. id 

It has been strongly urged that the power to prescribe this species 
■of punishment maj' be abused. That such a power may be abused 
cannot be denied, since all power entrusted to men is subject to abuse. 
Tlie power to declare crimes and prescribe punishments is high, indefi- 
nite, and discretionary, and therefore affords ample room for abuse. 
Yet the legislature by their acts, instead of any tendency to severity, 
«how a strong disposition to mildness in the use of tlieir power over 
•crimes and punishments. That disqualification to hold public trusts 
will become a frequent punishment seems not probable ; the legis- 
lature having hitliurto ado[)ted this punishment only in the two 
cases of briber}^ and duels. But whatever ma}' he the danger of abuse, 
the punishment itself is not unconstitutional. The remedj- for abuse of 
the legislative power, in enacting laws which may be unwise, while they 
are not unconstitutional, is not in the courts of justice. It is found in 
other parts of the system, in frequent elections and in the due course 
of the legislative power itself, which alike enacts and repeals laws in 
pursuance of public opinion. That this punishment is little consonant 
to the genius of our institutions ; that there is an ample choice of pun- 
ishments for crimes without adopting this ; that the electors and the 
appointing powers should enjoy their free choice for public statiqns, 
without legal exclusions even far crimes, are reasons of great force; 
but they are reasons upon which the legislature must decide. 

Mj' opinion upon the whole case is, that the punishment of incapac- 
ity to hold office, prescribed by the act to suppress duelling, is 
not inconsistent with the constitution ; and- that this cause has been 
rightly determined by the courts through which it has passed. 

Bowman, Burt, Clark, Dcdlet, Eakll, Gardiner, Height, 
Lynde, Malloby, M'Call, M'Intyris, Redfield, Sudam, Thorn, 
Ward, Wooster, and Wright, Senators, concurred. 

Ogden, Senator, dissented. 



LEDGEEWOOD v. STATE. 
Supreme Court op Indiana. 1893. 
[Reported 134 Ind. 81]. 

McCabb, J. — The appellant was convicted by the Circuit Court on 
a plea of guilty on an indictment charging him and Samuel Harbin with 
arson, and each was sentenced to the State's prison for the period of 
seventeen years, and the court fined each of them one hundred dollars, 
and rendered judgment accordingly. The appellant alone appeals. 

The errors assigned are : 

1 and 2. That the indictment does not state facts sufficient to con- 
stitute a public offence. 

3. That the court had no jurisdiction of the subject. 



14 liEDGEEWOOD V. STATE. [CHAP. I. 

4. That the court had no jurisdiction over the person of appellant. 

5. That there was error in overruling appellant's motion to be 
discharged . 

6. That there was error in permitting the state to file counter- motions 
and affidavits to appellant's motion for discharge. 

7. That there was error in overruling the motion to strike out parts 
of said counter-affidavits. 

8. That there was error in overruling appellant's motion in arrest of 
judgment. 

9. That there was error in overruling appellant's motion for a new 
trial. 

There were two counts in the indictment. Therefore, if either count 
was sufficient, there was no error in overruling the motion in arrest of 
judgment. Brj-ant v. State, 106 Ind. 549. 

The first count reads as follows, omitting the formal part: "That 
Bazil Ledgerwood and Samuel Harbin, on the 7th da}' of October, 
1891, at and in the count}' of Daviess, in the State of Indiana, did 
then and there unlawfully, wilfully, maliciously, and feloniousl}' set on 
fire and attempt, to burn down and destroy the county court-house, 
situate in the cit}' of Washington, in Daviess county, in the State of 
Indiana, which county court-hou'se was then and there the propert}' 
of Daviess county, and then and there of the value of fifty thousand 
dollars." 

We think this count is sufficient in its statement of the facts consti- 
tuting the offence defined by section 1927, R. S. 1881, as amended by 
the act approved March 9th, 1891, to withstand a motion in arrest. 
Acts 1891, p. 402. 

It is insisted by appellant's counsel that the latter act is invalid, 
because it .does not define the crime of arson, and in support of that 
contention thej' cite the statute which provides that " Crimes and mis- 
demeanors shall be defined and punishment therefor fixed by statutes 
of this State, and not otherwise." Section 237, R. S. 1881. 

This statute was enacted in 1852 as the second section of an act 
entitled " An act declaring the law governing this State " approved 
May 31st, 1852. Section 605, 1 R. S. 1876. All that part of the act 
relating to what laws were in force, and especially that part adopting 
the English common law, with certain exceptions, had substantially 
been in force in this state before. Indeed, the English common law, 
with the exceptions mentioned, had been adopted in this state as far 
back as the year 1795 by the Governor and judges of the then Terri- 
tory, and that provision was spbstantially reenacted by the Territorial 
Legislature in 1807, and has been substantially reenacted at every 
revision of our statute since that time. Stevenson v. Cloud, 5 Blackf. 
92. But in the act of 1852, above referred to, the provision as to the 
definition of crimes and misdemeanors was added for the first time, 
it being the first provision of the kind ever adopted in this state. 

In support of their construction of the statute above cited, appellant's 



SECT. I.^ LEDGERWOOD V. STATE. 15 

counsel cite Rosenbaum v. State, 4 Ind. 699 ; Smoot v. State, 18 Ind. 
18 ; State v. President, etc., Ohio, etc., R. R. Co., 23 Ind. 362 ; State v. 
Johnson, 69 Ind. 85 ; Stephens v. State, 107 Ind. 185. 

We have examined these cases, and find them not at all in point, for 
reasons so obvious that further comment on them is unnecessary. 

The appellant's attorneys further seek to support their contention by 
citing Hackney v. State, 8 Ind. 494 ; Jennings v. State, 16 Ind. 335 ; 
and Marvin v. State, 19 Ind. 181. It must be conceded that these 
cases all directly support appellant's contention, and hold that a 
statute that does not define a public offence with some degree of 
minuteness is void because not in conformity' to the first statute above 
quoted. But these cases, and others like them, were all overruled by 
this court in Wall v. State, 23 Ind. 150. That case has been followed 
by an unbroken line of decisions b}' this court until the present time. 
But the ground upon which Feazeb, Judge, speaking for the whole 
court, placed the decision in that case, has given rise to some confu- 
sion as to the real condition of our criminal code. That able jurist in 
that case said " That the Legislature can not in such a matter impose 
limits or restrictions upon its own future action, and that when two 
statutes are inconsistent, the last enactment stands as the law, are very 
plain propositions, which we presume will never be controverted. It 
follows that the act of May 31st, if in conflict with the act of June 10th 
(which was the date of the enactment of the criminal code of 1852), 
is so far repealed by the latter act. To hold that the legislature may, 
b3' mere exercise of legislative power, say what a future legislature 
may or ma^' not do, would be but to declare that the whole legis- 
lative power of the government may be lawfuUj- annihilated, and the 
government summarily brought to an end by the action of one of its 
departments.'' 

While the principle thus announced was correct in the abstract, yet 
it was not applicable to the case, and did not furnish the true and real 
reason that made the conclusion reached in the case sound and good 
law. The court went on to hold, that inasmuch as the statute above 
quoted was enacted before the criminal statute then in question was 
enacted, which it was complained did not define the crime sufficiently ; 
that the last act, the criminal statute, in so far as it conflicted with the 
first; operated as a repeal of the statute above quoted. 

As before stated, this decision has been followed by a large number 
of cases in which the same reason is given for the ruling, and, finally, 
in Hood v. State, 66 Ind. 263, and Ardery v. State, 56 Ind. 328, it was 
held that the section of the statute above quoted was repealed by the 
act creating crimes and misdemeanors. And though that section has 
not since been reenacted by the legislature, and the decisions of 
this court in Hood v. State, supra, and Ardery v. State, supra, have 
not been overruled, this court has, in Jones v. State, 59 Ind. 229, and 
Stephens v. State, 107 Ind. 186, said of this section, that "That pro- 
vision of law still continues in force." Other cases, perhaps, make the 



16 LEDGERWOOD V. STATE. [CHAP. I. 

same declaration. How such a conclusion is reached neither of the 
learned judges, Howk and Niblack, delivering the opinions, respec- 
tively, in those cases, tells us. The truth is, the long line of cases 
culminating in the two cases in 56 Ind., supra, not being overruled, 
and the statute therein held to be repealed, never having been reenacted, 
it is difficult to see how it still remained in force. 

In the case in 107 Ind., supra, Niblack, J., cites in support of the 
opinion Hackney v. State, supra, which, as we have seen, had long 
before been overruled, and, as we now hold, correctly overruled. The 
inevitable result is, if the statute mentioned has been repealed, as this 
court held in the cases in 56 Ind., supra, it makes a great difference 
in our criminal law. With that statute repealed, instead of public 
offences being, as is generally supposed, of statutory creation exclu- 
sively, we have all common-law offences as well as those of statutory 
origin as parts of our criminal law. 

Such a result as that, it is well understood, i% very undesirable with 
the courts, the legal profession, and the people. This undesirable 
result has been brought about by assigning a wrong reason for a right 
decision, in Wall v. State, supra, and following that reason to its 
legitimate result in the subsequent cases. The section of the statute 
in question was never intended, by the legislature that enacted it, to 
place a restriction upon the action of future legislatures, or even upon 
itself, as to the manner of defining crimes and misdemeanors. This 
is apparent when we take into consideration the history of the whole 
act in which this provision is found and the evils sought to be remedied 
by the provision. 

As we have already seen, that part of the act adopting the Englisb 
common law, which was enacted by the Governor and judges of thf 
Indiana Territory in 1795, and reenacted in all the revisions of oui 
statutes substantially as it now is, until 1852, and then for the firs*: 
time the provision in question was added to that act. Prior to thai 
time the common law as to crimes and misdemeanors was in force 
because it was so enacted by adopting the common law by the legisla- 
tive authority of the state without exeception of limitation as to crime? 
and misdemeanors. State v. Bertheol, 6 Blackf. 474. 

It was undoubtedly the intention of the legislature in 1852, by add- 
ing the provision under consideration to the act adopting the commou 
law, to adopt a new and different system of criminal law from that 
which had formerly prevailed ; it was the intention to modify the act 
adopting the common law so as not to adopt that part of it relating 
to crimes and midemeanors. It was the evil of the common law as to 
criminal offences which were so great in number, and sometimes very 
shadowy and unsubstantial, imposing upon the people and the courts 
the necessity of wading through volumes of abstrJse learning to ascer- 
tain what acts were criminal that the legislature proposed to rid the 
people of. That could be, and was, accomplished by not adopting the 
common law as to crimes and misdemeanors. It was desirable and 
necessary to the public weal to adopt the common law as to other 



SECT. I.] LEDGERWOOD V. STATE. 17 

subjects. Therefore, the intention as to public offences was made 
manifest and effectual by adding the provision to the act adopting 
the common law that " crimes and misdemeanors shall be defined, 
and punishment therefor fixed, by statutes of this state and not 
otherwise." 

It was not for the purpose of securing a more minute definition of 
crimes and misdemeanors than the common law afforded, that this pro- 
vision was added, but it was to get rid of common-law offences entirely 
by not adopting that part of the common law. If the common law 
had not been adopted at all, in whole or in part, the provision in ques- 
tion would have had no significance or force whatever. Because, if no 
part of the common law had been adopted, the provision in question 
would have been the law without being enacted. If there was no 
common law of any kind in force, crimes and misdemeanors must, 
of necessity, be defined and punishment therefor fixed by statutes 
of this state and not otherwise. Therefore, this provision was only 
made necessary to secure a purely statutory criminal code because 
of the adoption of the common law. This view of the provision 
relieves it from the charge that it sought to trammel future legis- 
latures, requiring of them any degree of minuteness in defining crimes ; 
indeed, no act subsequent to that, however vague and general in its 
definition of public offences, is at all inconsistent with that act ; on the 
contrary, all such acts are in harmony with it. It has been held, and 
we think properly under that statute, that the crime may be designated 
by the statute without any definition, and the punishment fixed, and 
the courts would define the crime by the aid of common-law definitions, 
and the general import of the language employed. Hedderich v. State, 
101 Ind. 564; State v. Berdetta, 73 Ind. 185. 

We think, therefore, it was error to hold that the enactOient of 
criminal statutes without specifically defining the crimes designated 
therein repealed the provision in question or even modified it. And 
while a proper conclusion was reached in each of the two cases in 
56 Ind., supra, and the cases leading up to them, yet they were placed 
on wrong grounds, and so far as they hold that the provision in ques- 
tion had been repealed or modified, thej' are overruled, and we ad- 
judge that said provision is still in force, unrepealed and unmodified. 
And, therefore, that we have no common-law offences in Indiana, and 
that the statute under which this prosecution is waged, which reads 
as follows : " whoever wilfully and maliciously burns or attempts to 
burn anj' dwelling-house or other building, finished or unfinished, occu- 
pied or unoccupied, whether the building be used or intended for a 
dwelling-house or any other purpose ; " . . . "the property so burned 
or attempted to be burned, being of the value of twenty dollars or 
upwards, and being the property of another, ... is guilty of arson, 
and upon the conviction thereof shall be imprisoned in the state prison 
not more than twenty-one years, nor less than one year, and fined not 
exceeding double the value of the property burned, ..." is not invalid 
for indefiniteness. 



18 'COMMONWEAIjJf V. MARSHALL. , ^CHAP, L 

COMMONWEALTH v. MARSHALL. 
Supreme Judicial Codrt of Massachusetts. 1831. 

[Reported 11 Pick. 350. | 

At April term 1831 of this Court, in the county of Franklin, the 
defendants were indicted for a misdemeanor in disinterring a dead body 
on the 20th of February of the same year, contra formam statuti. The 
defendants pleaded nolo contendere, and afterwards moved in arrest of 
judgment, for the following reasons : 1. Because the offence charged in 
the indictment is therein stated to have been committed in violation of 
the statute passed March 2, 1815 (St. 1814, c. 175), which was re- 
pealed by the statute of Feb. 28, 1831 (St. 1880, c. 57), without any 
saving or excepting clause whatever ; and, 2. Because no offence now 
known by the laws of this commonwealth, is therein described. 

Shaw, C. J., delivered the opinion of the Court. This indictment 
cannot be maintained, consistently with the decision of the Court last 
year, in the case in this count}', of Commonwealth v. Cooley, 10 Pick. 
37. In that case it was held, that the statute of 1814, containing a 
series of provisions in relation to the whole subject-matter of the dis- 
interment of dead bodies, had superseded and by necessary impliea- 
lion repealed the provisions of the common law on the same subject. 
If it be true, as contended, that as a general rule the repeal of a re- 
pealing law, revives the pre-existing law, it would be difficult to main- 
tain that such a clause of repeal, in a statute containing a sei-ies of 
provisions, revising the whole subject, and superseding the existing 
statute, would revive the pre-existing provisions of the common law. 
But were that point conceded, as contended for, it would not aid this 
indictment. 

In the case supposed, the common law would not be in force during 
the existence of the statute, and if revived bj' its repeal, such revival 
would take effect onl}' from the time of such repeal. 

It is clear, that there can be no legal conviction for an offence, unless 
the act be contrary to law at the time it is committed ; nor can there 
be a judgment, unless the law is in force at the time of the indictment 
and judgment. If the law ceases to operate, by its own limitation or by 
a repeal, at any time before judgment, no judgment can be given. 
Hence, it is usual in every repealing law to make it operate prospec- 
tively only, and to insert a saving clause, preventing the operation of 
the repeal, and continuing the repealed law in force, as to all pending 
prosecutions, and often as to all violations of the existing law alread\' 
committed. 

These principles settle the present case. By the statute 1830, c. 57, 
j 6, that of 1814 was repealed without any saving clause. The act 
i^harged upon the defendants as an offence was done after the passing 



SECT. I.] HALFIN V. STATE. 19 

of the statute of 1814, and before that of 1830. The act cannot be 
punished as an offence at common law, for that was not in force during 
the existence of the statute ; nor by the statute of 1814, because it has 
been repealed without any saving clause ; nor bj- the statute of 1830, 
for the act was done before that statute was passed. No judgment 
therefore can be rendered against the defendants, on this indictment. 

Judgment arrested. 



HALFIN V. STATE. 

Court of Appeals of Texas. 1878. 

[Reported 5 Tex. App. 212.] 

Winkler, J. The appellant is prosecuted by information in the 
County Court, and was convicted on a charge of having violated the 
provisions of the act of the legislature of 1876, entitled "An act to 
prohibit the sale, exchange, or gift of intoxicating liquors in any 
county, justice's precinct, city, or town in this state that may so elect ;" 
prescribing the mode of election, and affixing a punishment for its 
violation, — commonly known as the local-option law. Acts 1876, 
p. 26. 

It is not disputed that, prior to the alleged commission of the offence 
charged against the appellant, Caldwell County had, by ^t)te in accord- 
ance with the provisions of the act, declared that liquors should not 
be sold in the county except as authorized by the act aforesaid. But 
it is insisted on in behalf of the appellant that, since this prosecution 
was commenced, another election has been held in the county under the 
provisions of the act in question, by which it was determined that the 
act should no longer be enforced so as to prohibit the sale of liquors in 
the county ; and that the effect of this last election is to relieve from 
prosecution and punishment those who had, prior thereto, been accused 
of violating its provisions. 

It is provided, in the third section of the act, for the holding of a 
special session of the Commissioners' Court, for the purpose of open- 
ing the polls and counting the votes, and directing that " if a majority 
of the votes cast are for prohibition, said court shall immediately make 
an order declaring the result of said vote, and absolutely' prohibiting 
the sale of intoxicating liquors within the prescribed bounds (except 
for the purposes specified in section 1 of this act) until such time as 
the qualified voters therein may, at a legal election held for the purpose, 
by a majority vote decide otherwise." The section goes on to prescribe 
the manner of making publication of the result and the order of 
prohibition. 

We are of opinion that the words in the third section, ' ' until such 
time as the qualified voters therein may, at a legal election held for the 



20 STEVENS V. DIMOND. [CHAP. I. 

purpose, by a majority vote decide otiierwise," must be construed as 
an authority giving the voters interested an opportunity to decide — 
after the expiration of twelve months, mentioned in the fourth section 
— by vote whether the prohibition named in the first section shall be 
longer continued or not, and that a majority vote at this second elec- 
tion would annul, from the time it is held and the result declared and 
published, the prohibition provided for in the first section of the act. 

It being made to appear that the second election contemplated in 
the act has been held, and that it has resulted in a majority vote 
against prohibition, we are of opinion that there is no law now in force 
in Caldwell County by which persons who may be charged under the 
act can lawfully be punished. 

" The repeal of a penal law, when the repealing statute substitutes 
no other penalty, will be held to exempt from punishment all persons 
who have offended against the provisions of said repealed law, unless 
it be declared otherwise in the repealing statute." Penal Code, art. 15 
(Pose. Dig., arts. 16, 17) ; Montgomery «. The State, 2 Texas, Ct. App. 
618. 

There being no law now in force in Caldwell County to punish oflfen- 
ders against the local-option law, since its annulment by the second 
vote of the county against prohibition, the judgment will be reversed 
and this prosecution will be dismissed. Heversed and dismissed. 



STEVENS V. DIMOND. 

Superior Court of Judicature, New Hampshire. 1833. 

[Reported 6 N. H. 330.] 

This was a writ of error brought to reverse a judgment of the court 
of common pleas in this county. 

It appeared by the record, that Stevens brought an action of debt 
against Dimond upon the statute of June 17, 1811, entitled " an act to 
authorize towns to malie by-laws to prevent horses, etc., from going at 
large," and upon a by-law made by the town of Hawke, on the 9th 
March, 1830, "that if any horse, horse kind, etc., shall be found going 
at large from and after the first day of April until the last day of 
October, in any street, highway, or common in said town, the owner 
thereof shall, for each and every offence forfeit and pay the sum of 
four dollars, with costs of suit, to any person who may sue for the 
same, to be recovered in an action of debt, etc., unless such horse, 
etc., shall be going at large without the knowledge or negligence of the 
owner or owners." 

It was alleged in the declaration that Dimond, on the 11th May, 
1830, at Hawke, let one mare and one colt, he being the owner thereof, 
go at large in a certain highway in said Hawke, with his own knowl- 
edge and consent, contrary to the form and effect of the law aforesaid. 



SECT. I.j STEVENS V. DIMOND. 21 

The defendant pleaded that he did not owe in manner and form as 
alleged, and the cause was tried in the common pleas, at October term, 
1831, when the plaintiff proved the making of the bj'-law, and that the 
mare and colt of the defendant were, on the 11 Ma}-, 1830, at large, 
with his consent, in a highway in Hawke ; but the court directed the 
jury that the said by-law being in force for a year only, from the time 
of making thereof, and having expired by its own limitation, the 
plaintiff could not sustain his action. The jury having returned a ver- 
dict for the defendant, a bill of exceptions to the directions of the court 
to the jury was filed and allowed, and this writ of error brought. 

Richardson, C. J., delivered the opinion of the court. 

The action, the judgment in which is now before us, was founded as 
well upon the statute which authorized towns to make bj'-laws, as upon 
the by-law, and it was necessary to allege in the declaration, that the 
offence was committed as well against the form of the statute, as against 
the form of the by-law. 1 Chitty's PI. 358 ; 3 Pickering, 462, Com- 
monwealth V. Worcester ; 5 ditto, 44, Commonwealth v. Gay. 

The statute, on which that action was founded, still remains in force; 
and the by-law has never been repealed by the town. 

But the court below were of opinion that the by-law expired with the 
year by its own limitation, and ceased to be in force. And if this be 
correct, it is clear that the verdict was right ; for after a law ceases to 
be in force no penalty can be enforced, nor punishment inflicted for 
violations of the law wliile it was in force. 

The question, then, is, did the by-law in this case cease to be in force 
after the year, so that no action for a penalty incurred under it can now 
be maintained? 

There is nothing in the by-law itself which, in express terms, declares 
it shall not be in force after the year. When the period it was intended 
to regulate expired, it, without doubt, ceased to be a rule to regulate 
what was done afterwards. But did it cease to be the law of that 
period ? 

In many cases statutes that are repealed, or that cease to be in force 
by their own limitation, continue to be the law of the period when they 
were in force. It is, however, settled, that this is not the case with 
laws inflicting penalties. When these expire by their own limitation, 
or are repealed, they cease to be the law in relation to the past as well 
as the future, and can no longer be enforced in an}- case. No case is, 
however, to be found in which it was ever held before that they thus 
ceased to be law, unless they expired by express limitation in them- 
selves, or were repealed. It has never been decided that they cease to 
be law merely because the time the}' were intended to regulate had ex- 
pired. Many laws have been passed which were limited in their opera- 
tion to particular seasons of the year. This was the case with the 
statutes which regulated the hunting of deer, and the taking of fish in 
rivers and ponds. But it is imagined that no one ever supposed that 
those laws expired by their own limitations every time the season they 



22 KEX V. BfiOWN. [chap. I. 

were intended to regulate expired, and revived again with tiie return 
of the season. The same is the case with the statutes regulating the 
observance of the sabbath. The statutes apply only to one day in the 
week. Bnt we imagine no person will contend that they remain in force 
only during Sunday. 

So we have a statute which prohibits the publication of the revised 
laws within the period of ten years from a certain time under a penalty. 
It seems to us that no one would seriously suppose that a penalty in- 
curred under that statute could not be enforced after the expiration of 
the ten years. 

A very little consideration of the subject will convince any one that 
a limitation of the time to which a statute is to apply, is a very different 
thing from the limitation of the time a statute is to continue in force. 

We are, therefore, of opinion, that the instructions given to the jury 
by the court below were incorrect, and that the judgment must be re- 
versed. 



SECTION 11. 

Nature of Crime. 

EEX V. STONEHOUSE. 
King's Bench. 1696. 
[Reported 3 Salk. 188.] 

Indictment against Elizabeth Stonehouse, for that she, intending to 
deprive Henry Bradshaw of several sums of money, did falsely and 
maliciously accuse him of felony and of robbing her. 

This indictment was adjudged ill, because it was for a fact not 
indictable, it not being laid by way of conspiracy, so as to make it 
a public crime ; and it being only a private wrong the party hath his 
remedy by action on the case. 



REX V. BROWN. 
King's Bench. 1696. 

[Reported 3 Salk. 189.] 

The justices made an order, that the defendant should pay Stephen 
Paine, a taylor, 71. for work done ; which he (the defendant) refusing 
to do, was indicted. 

But it was quashed, for 't is a matter not indictable. 



SECT. II.J REGINA V. JONES. 23 



REX V. BRADFORD. 

King's Bench. 1698. 
[Reported 3 SaUc. 189.] 

The defendant was indicted for not curing the prosecutor of an 
ulcerated throat, as he had agreed and undertaken to do. 

Quashed, for 't is no public offence, and no more in effect than an 
action on the case. 



HEX V. PIGOT. 
King's Bench. 1701. 
t [Reported 12 Mod. 516] 

He was convicted upon an indictment for misdemeanor in attempt* 
Ing forcibly to carry away one Mrs. Hescot, a woman of great fortune. 

Lord Holt, C. J. Sure this concerns all the people in England that 
would dispose of their children well. 

And he was fined two hundred marks, and the lady's maid, who was 
privy to the contrivance, was fined twenty marks, and to go to all the 
courts with a paper upon her, with her offence writ in large characters. 



REGINA V. JONES. • 
Queen's Bench. 1704. 
[Eepcfrted 2 Ld. Raym. 1013.] 

Mr. Parker moved to quash an indictment. It is, that the defend- 
ant came to J. D. and pretended to be sent to him by F. S. to receive 
20^. for his use ; whereas F. S. did not send him. This is no crime, 
and he has remedy by action. 

LoKD Holt, C. J. It is no crime unless he came with false tokens. 
Shall we indict one man for making a fool of another? Let him bring 
bis action. 

Powell, J., agreed. Quash it nisi. 



24 ATCHESON V. EVEEITT. [CHAP. L 

ATCHESON V. EVERITT. 
King's Bench. 1776. 
[Reported 1 Cowp. 382.] 

This was an action of debt upon the stat. 2 Geo. 2, c. 24, sect. 7, 
against briberj-. Plea, Not guilty. Verdict for the plaintiff. 

On behalf of the defendant, it was moved last term, that there might 
be a new trial ; because a Quaker had been received as a witness on 
his affirmation ; and it jras obiectft d, t>)at t.hig hpinc 
his evidence ought not to have DeeHTeceived. ' 

LoED Mansfield, C. J. ... We come then to this question : Is the 
present a criminal cause? A Quaker appears, and offers himself as 
a witness ; can he give evidence without being sworn ? If it is a crimi- 
nal case, he must be sworn, or he cannot give evidence. 

Now there is no distinction better known than the distinction 
between civil and criminal law ; or between criminal prosecutions and 
civil actions. 

Mr. Justice Blackstone, and all modern and ancient writers upon 
the subject distinguish between them. Penal actions were never yet 
i>ut under theJi cad of criminal la.w. or Crimea. . The construction of the 
"■stanitemust be extended by equity to make this a criminal cause. It 
is as much a civil action, as an action for money had and received. 
The legislature, when they excepted to the evidence of Quakers in 
criminal causes, must be understood to mean causes technically crimi- 
nal ; and a different construction would not only be injurious to 
Quakers, but prejudicial to the rest of the King's subjects who may want 
their testimony. The case mentioned by Mr. Eooke of Sir Watkyn 
Williams Wynne v. Middleton, Vide 1 Wils. 125. 2 Str. 1227, is a 
very full authority, and alone sufficient to warrant the distinction 
between civil and criminal proceedings. In that case the question was, 
Whether the stat. 7 & 8 Wm. 3, c. 7, was penal or remedial? The 
court held it was not a penal statute. But '' supposing it was to be 
considered as a penal statute, yet it was also a remedial law ; and 
therefore the objection taken was cured by stat. 16 & 17 Car. 2, c. 8." 
Now the words of exception in that statute, and also in stat. 32 Hen. 
8, c. 30, and in stat. 18 Eliz. c. 14, are " penal actions and criminal 
proceedings." But Lord Chief Justice Willes, in. delivering the solemn 
judgment of the court, says, there is another act which would decide of 
itself, if considered in the light of a new law, or as an interpretation of 
what was meant by penal actions in the stat. 16 & 17 Car 2, c. 8. 
This is the statute of jeofails 4 Geo. 2, c. 26, for turning all law pro- 
ceedings into English, and it has this remarkable conclusion, "that 
every statute of jeofails shall extend to all forms and proceedings in 

1 Arguments of counsel and parts of the opinion of the court have been omitted 
— Ed. 



SECT, ll.j BANCROFT V. MITCHELL. 25 

English (except in criminal cases) ; and that this clause shall be con- 
strued in the most beneficial manner." This is very decisive. 

No authority _w hitnTrnT h n n hrrn r"P"t,innp d on the other side , ynr n^ y 
case cliid where it has been he ld that a ppna.1 aM.inr, ia n fr^Tn^.na] (^^sjp ; 
arid perhiip« the poltlL was never Defore doubted. The single authority 
mentioned against receiving the evidence of the Quaker in this case is 
an appeal of murder, 2 Str. 856. But that is only a different mode of 
prosecuting an offender to death. Instead of proceeding by indictment 
in the usual way, it allows^ the relation to carry on the prosecution for 
the purpose of attaining the same end, which the King's prosecution 
would have had if the offender had been convicted, namely, execution : 
and therefore, the writers on the law of England class an appeal of 
murder in the books under the head of criminal cases. . . . 

In the case of Rex v. Turner, 2 Str. 1219, on a motion to quash an 
appointment of overseers, the court said, though the prosecution is 
in the King's name, the end of it is a civil remedj', and very properly 
allowed the Quaker's affirmation to be read. 

It is extraordinary, that upon all the cases of attachment not one 
was argued upon the ground of its being a criminal case; and to be 
sure the exception might as well hold on an aflSrmation taken to hold 
to bail ; because it deprives a man of his liberty. The very last 
attachment for non-performance of an award was obtained in this 
court upon a Quaker's aflSrmation, and not a word said by way of 
objection to it. That was the case of Taylor v. Scott. 

We are not under the least embarrassment in the present case : for 
there is not a single authority to prove, that upon a penal action 
a Quaker's evidence may not be received upon his affirmation. There- 
fore, I am of opinion that Mr. Justice Nares did perfectly right in 
admitting this Quaker to be a witness upon his affirmation ; and con- 
sequently that the rule for a new trial should be discharged. 

The three other Judges concurred. 

Hule discharged. 



BANCROFT v. MITCHELL. 
Queen's Bench. 1867. 
[Reported L. E. 2 Q. B. 549.] 

This was an action for false imprisonment. The plaintiff was arrested 
while he was protected from arrest on civil suits by an order of the 
Court of Bankruptcy. The defence was that the plaintiff was arrested 
on a warrant for failure to obey the order of a magistrate for paying 
3s. per week for the support of his mother. At the trial the jury found 
one farthing damages. 

The learned judge, being of opinion that the plaintiff was not protected 
from arrest, directed a nonsuit, with leave to the plaintiff to move to 
enter a verdict for 15^. and a farthing. 



26 BANCROFT V. MITCHELL. [CHAP. I. 

A rule was accordingly obtained.' 

Blackbdkk, J. The question whicli arises under s. 113 of 12 & 13 
Vict. c. 106 is, whether or not the plaintiff was protected by the order 
of the county court from the process under which he was arrested. 
That depends upon the nature of the process under which he was 
arrested and the nature of the process from which the bankrupt is pro- 
tected. Section 113 relates back to s. 112, which provides that, if a 
bankrupt be not in prison, he shall be free, from arrest in coming to 
surrender, and after such surrender for suci further time as shall be 
allowed him by the commissioner ; and if he be in prison he maj' be 
brought up to be examined or to surrender, and after he has been 
adjudged a bankrupt and has surrendered and obtained his protection 
from arrest, if he be in prison or arrested for debt, the Court may order 
his immediate release. Now, the words of s. 112 are nearly similar to 
those contained in the bankruptcy acts passed before 12 & 13 Vict. c. 
106, and the point was considered in Darby v. Baugham, 5 T. R. 209, 
and the decision of the Court was, that the object of the enactment 
then in force was to give protection to the same extent, and in the 
same way, to a bankrupt, as a witness who was going to court to give 
evidence would receive protection, and therefore a bankrupt's creditors 
could not arrest him as he was going to surrender. The protection 
which the bankrupt receives being analogous to that acco rded to a w iF" 
n8ys, the process against which he is protected ia In tne nature of civil 
BrocesSj__but. if nn tho o t h er hand the pioueatj itj Ih th e nature of cnmr- 



je question remains, what is the nature of the process under which 
the plaintiff was arrested? What is it that the plaintiff has done or 
omitted to do? He is the son of a woman who is chargeable to the 
parish, and he is of sufficient ability to support her. There was a 
moral duty on him, but at common law no legal dutj', to support her. 
By statute 43 Eliz. c. 2, s. 7, it is enacted, that the children of every 
poor person not being able to work, being of sufficient ability, shall, at 
their own charge, relieve and maintain everj- such poor person in that 
manner, and according to that rate, as by the justices shall be assessed, 
upon pain that every one of them shalUica:feit20s. for e^seiyTironth 
which they shall fail therein. It was as a punishment "lorthe disobedi- 
ence of an order made under this section that the plaintiff was arrested. 
Mr. Williams' argument is that the plaintiff was arrested for not paying 
a sum of money which he was ordered to pay to the parish, and there- 
fore it was only for the non-payment of a debt that he was arrested. 
But the payment of the sum is only one mode by which the plaintiff 
complies with the statute. The statute makes what was a duty of im- 
perfect obligation a positive duty. I agree that the fact that an indict- 
ment will lie for a disobedience of an order of sessions is no reason 

1 This short statement of the facts is substituted for that of the Reporter. Argu- 
ments of counsel are omitted. — Ed. 



SECT. 11.] STATE V. BALDWIN. 27 

that the disobedience should be an offence of a criminal nature;^ 
^offence here is tha t the pla iirtiff-beiB g ' o f abilily wuuld not au|)port 
Impotent, relative — that is a duty the neglect ofwhioh^ tiho"|^h ""\y, 

jaSfgttj wr un g before the g tatut ey -i^'-^ggg '^'^'' ' ' ' 'l y 'I'" rtatnt c.. It 

seems to me, therefore, that the commitment is not in the nature of 
civil, but of criminal process to punish the plaintiff for not performing 
the duty imposed on him by statute. It is quite true that on payment 
of the money he would get off the imprisonment, but still it is in the 
nature of criminal process, and consequently the plaintiff was not 
entitled to his discharge. He must, therefore, fail to recover the 15/. 
penalty or the farthing damages which the jury have given him, because 
he was properly imprisoned as a misdemeanant, and not as a debtor. 
There was evidence that it was necessary for his health, and for the 
sake of cleanliness, that his hair and whiskers should be cut, and it 
was a question for the jurj' whether there was any excess in this 
respect, and I think we must take it there was none. 

Melloe, J. I am of the same opinion. I was impressed by the 
argument of Mr. Williams that whether the plaintiff could be indicted 
or not for a disobedience of the order, was not the test whether the 
offence was criminal or not. But I have come to the conclusion that 
the duty of a son to support his mother, having been originally moral 
onl3', was made a positive duty by the statute, which requires that, in 
the event of the son neglecting that duty, he shall pay such sum as the 
justices shall order, and then the ultimate enforcement of that duty is 
carried out by fixing a penalty, and in the event of the nonpayment of 
that penalty a punishment of not more than three months imprisonment 
is imposed. That is in the nature of a punishment for a criminal 
oifence. It is not at all analogous to the case of an indictment fordis- 
obe^'ing an order of sessions for the payment of poor-rates, nor to an 
attachment for nonpayment of money pursuant to the order of the 
Court of Chancery, where the process is in the nature of an execution 
I for a debt. T he circumstances of this case show that the impriso nment 
k-a-punishment for an offence, ^rici not l or enforcing a mere obligation 
"u j paji muuey. — Th« plaibtitt, therefore, is not entitled to the penally 
for which he sues, nor to the damages the jury have given him ; the rule 
must be discharged. Rule discharged. 



STATE V. BALDWIN. 
Supreme Court of North Carolina. 1835. 
[Reported I Dev. ^ Bat. 195.] 
Gaston, J.* ... The act here charged is not made up of a number 
of acts frequently repeated, and which cannot be distinctly and spec- 
ially set forth without inconvenient prolixity. It is an act single and 
distinct, and committed on a particular occasion. It is charged that 

1 Part of the opinion is omitted. — Ed. 



28 STATE V. BALDWIN. [CHAP. I. 

the defendants assembled at a public place, and profanely and with a 
loud voice cursed, swore, and quarrelled, in the hearing of divers per- 
sons, and it is alleged, that by means thereof a certain singing school 
then and there kept and held was broken up and disturbed. This pro- 
fane and loud cursing and quarrelling on that particular occasion, 
might have been an annoyance to those who heard and witnessed it ; 
but it could not have been an annoyance to the citizens in general, 
unless there were some other facts in the case. If there were such 
other facts, then these ought to have been set forth ; for an indictment 
must specify all the facts which constitute the offence. It is possible 
that a frequent and habitual repetition of acts which singlj- are but 
private annoyances may constitute a public or common nuisance. But 
if so, this frequent and habitual repetition should be appropriately 
charged. No injurious consequences of an abiding kind, and therefore 
affecting not simply those present at the commission of the act, but 
affecting the citizens suceessiveh', and as they come within the reach 
of these consequences, are charged, or can be presumed to have followed 
from the act. "The singing school" is indeed said to have been 
broken up and disturbed. Of whom that school was composed does 
not even appear, but whether it consisted of the defendants or of others 
its interruption cannot be legally pronounced an inconvenience to the 
whole community. Thji InPiFi rf inRtr""'^iop W the aco ^TTiplighj&pwt., to 
those who would fain acquire it, does not ver vgravely influence the 
guud Ot'der or enioyme nt or convenience of the citize ns m general, so 



ti o to call for ■rgdrggl^on.JJie-oe- m plain L of Ihtrytate. 

*~ If we yutiLain this as an indictment for a common nuisance, we shall 
be ol)liged to hold, that whenever two or more persons talk loud or 
curse or quarrel in the presence of others, it may be charged that this 
was done to the common nuisance, and if so found, will warrant 
punishment as for a crime. This would be either to extend the doctrine 
of common nuisances far beyond the limits within which they have 
hitherto been confined, or to allow of a vagueness and generality in 
criminal charges, inconsistent with that precision and certainty on the 
records so essential as restraints on capricious power, and so salutary 
as the safeguards of innocent men. 

Independently of the averment " to the common nuisance," the 
indictment contains no criminal charge. No conspiracy is alleged, no 
special intent or purpose is averred, which would impress an extraor- 
dinary character on the act done. T he persons disturbed are not rep - 
resented as having been e n f ra crprl i"n thn perform f i. n p e of any public 
■gntr= =^a3"enp8ftf^ in religions worship, attending nt Tin Hnntirtn, ftrn n t 

_a_coiart — Upon a demurrer to the indictment, we should be unable to 
render a judgment for the state. It is our opinion, therefore, that 
there is no error in the proceedings below, and that the judgment 
appealed from must be affirmed. 

Per Curiam. Judgment affirmed 



SECT. 11.] STATE V. STEAENS. 29 

STATE V. STEARNS. 

SuFERiOB Court of Judicatuuk, New Hampshire. 1855. 

[Reported 31 N. H. 106.] 

This is a prosecution against the respondent, for a breach of an 
ordinance of the city of Portsmouth, regulating bowling alleys, com- 
menced by a complaint before a justice of the peace.^ 

A warrant was issued upon this complaint, returnable before the 
police court of the city of Portsmouth, and the respondent being there 
found guilt}', took an appeal to the court of common pleas. 

In the court of common pleas, the respondent was ordered to pay 
the costs of the copies, and entry in that court, to which order he ex- 
cepted. The respondent demurred to the complaint and- declaration in 
this court, and the court sustained the demurrer and dismissed the 
complaint. The respondent then moved for costs of this court, and 
also of the police court, to be taxed against the city of Portsmouth, or 
the complainant in said prosecution, which motion was refused by the 
court, and the respondent excepted. 

The penalty to be recovered for the breach of this ordinance is, by 
law, to be appropriated for such uses as shall be directed hy the city 
council of said city. 

The questions arising upon these exceptions were transferred to this 
court for decision. 

Bell, J. . . . It is contended for the respondent that this proceeding 
is not in its nature criminal, but is essentially a civil action, falling within 
the statute rule that " costs shall follow the event of every action or 
petition, unless otherwise directed bj' law, or by the court." Rev. Stat, 
ch. 191, § 1. And first it is said that the form of proceeding by com- 
plaint is not conclusive that the ease is of a criminal nature, and to this 
position we are inclined to yield our assent ; but we think it very clear 
that a statute provision prescribing such p roceedings in a gi veTTcase, as " 
a^ g-asiialTy made appropri ate_by__thp lawrT(wvnminal cases, is strong 
evidence that the cases werejegajdfiiiJ3y-4b«4egiek;tmtra:s-ofXcrTmiiiSt" 
nature. 



We thin¥, too, it maj-, in general, be justlj- inferred, where the legis- 
.lature prescribe a course of proceedings adopted bj' the common law 
for proceedings of a nature enti-rely different, that the design of the 
legislature was to prescribe all the known and usual incidents of the 
prescribed process, and to give to parties the advantages of proceed- 
ings in that form. As, if the legislature grant a remedy in assumpsit, 
where, at common law, trespass would be appropriate, they design that 
the action of assumpsit shall retain its proper character and rules in 
that case. 

^ The form of the complaint and pare of the opinion of the court are omitted. — Ed. 



30 STATE V. STEAENS. [CHAP I. 

Neither does the appropriation of the fine or penalty imposed in a 
given case, whether it be to the state, county, or town, or to a corpo- 
ration, or individual, furnish any decisive test that a proceeding is 
criminal or civil. * When a statute forbids fraudulent mortgages and 
the concealment of attachable property, it by no means follows, 
because half th'e fine is given to the complainant, that the prosecution 
is civil, nor would it do so if {he whole fine were so appropriated. 

Thequest ioB Tvh p thpr n l ''^:^^! p r""°°'^ '""g- " <•" ^'^ >ipprnpH niiri ] »i-_ 
criminal, or as partaking of the nature of civil and criminal prncped- 
itigs, is t,o -be-determinexHSS-Iire consideration whether the law is de- 



to suppress and punish a public wrong, an injury affectuig~tbe- 
-^eaee-rand- Welfare of the commanitj' and th e g e nera l— sfecuf^gi^r 
trlintJTnritJn_flr lignrrl in.iiinly tiTTrfFirj-fl Jii rrmrdy to g" indiyjdl!.^]^'' 
an injury done to his person or pro perty. Upon this question the ap- 
^rnprintinn nf -the fin" 'H'-p°TTflTlyTTa° a bearing, since,- if it is applied 
to the public use, no idea can be entertained that the proceeding is 
designed as a remedy for a private loss or injury, though it maj' some- 
times have a different tendencj', where the amount is appropriated to 
the use of a suffering partJ^ 

And, in a similar way, the adoption of a course of proceeding usual 
in criminal cases alone may bear upon the main question before referred 
to, because, ordinarily, proceedings adapted to the punishment of 
offences are, to a great degree, unsuitable for the redress of private in- 
juries. The party injured has no exclusive privilege to institute 
criminal proceedings ; they are equally open to others ; he has no con- 
trol over such prosecutions, which are generally managed bj' the public 
authorities ; the fines and penalties are, for the most part, payable 
to others, and liable to be remitted by the proper oflScers without 
reference to his wishes or his interest. 

'^^ ^'° prP fi Pn^ """^ ^'^ """ "^ " imm P'^lit'"" Tnr flTt-rsffanfip rngrla penal 
by a city "HJP^JICP) bfiO"""^ "^ '*•" <'iippr>n''fl nvil nnnfingnnnnn ti t f> gr». 

ciety: — TTTiasno relation to any individual wrong, and the remedy 
prescribed~}s such as indicates a criminal proceeding. It is prosecuted 
by a public oflBcer, as part of his official duty, but might be prosecuted 
by any other person as well. The fine is payable to the city, but not 
to compensate anywrongja tlir' i l.ll■^l^J^]^ll^ The burden of "adminis- 
terTl fg justi c C tsTIereimposed upon counties, cities, and towns, and 
fines and forfeitures are payable to them, as the representatives of the 
public, to aid in defraying this part of the expense of civil government. 
The case then seems to us to lack all the indicia of a civil action, and 
to be, in fact, as it appears, a criminal prosecution. 

The court were in error in requiring the costs of the copies and entry 
to be paid, but the costs were properly' disallowed. 



SECT. II.J STATE V. KEENAN. 31 

STATE V. KEENAN. 

Supreme Court of Errors of Connecticut. 1889. 

[Reported 57 Conn. 286.] 

Carpenter, J. This is a criminal prosecution for the violation of an 
ordinance of the city of New Haven. The City Court convicted the 
defendant, and he appealed to the Court of Common Pleas, ('riminal 
Bide. In the appellate court the defendant's counsel moved to erase 
the case from the docket on the ground tliat tiie alleged offence was not 
a crime ; and on that motion the case was reserved for the advice of 
this court. 

The ordinance is as follows : — "no vehicle, or the animahs attached 
thereto, shall stand waiting for employment within ten feet of any 
cross-walk." Another section prescribes a penalty of not less than one 
nor more than ten dollars for every violation of the ordinance. The 
only nq fistif'" '" -"^t^^^hn.- '^-^|■\^ ^ noiation is a crim e. 

If the legislature itself had prohilnted the act and prescribed the 
penalty in precisely the same terms, there can be little doubt that 
the act would be a misdemeanor and might be prosecuted criminally. 
It cannot be disputed that the legislature in fact granted the power to 
enact this hy-lnw, and the power lias been exercised. Logically it 
would seem to follow that the b\'-law should be of the same character 
and have the same force within local limits as if enacted by the 
legislature. 

The test wh ether a proceed in cr is civil y^r i'riif'nf i 1| i° t-T d°t°rminf 
whether its purpose is t o redress a private or a piihli(! wrong. Is the 
-law uiiuie lo prevent a private injury or a nuisance? 

In Hinman v. Taylor, 2 Conn. 357, which was a prosecution under 
the bastardy act, it was contended that because the proceeding was in 
form criminal it must be regarded as a criminal prosecution ; but the 
court took a different view. Swift, C. J., held that the proposition 
that the form of the process decided the character of the action, was 
repugnant to reason and precedent. " Suppose," he says, " the legis- 
lature should authorize a forthwith process on a note of hand ; no one. 
will seriously pretend that this would convert an action of assumpsit 
into a criminal suit. To constitute a criminal suit some punishment 
must be inflicted in hiilialj of (i|" yi,"'" " — He e vidently regauled IhiS 
'Objeet and nature ot the suit as determining the character of the pro- 
ceeding. Judge HosMEB, in the same case, is still more explicit. 
He says : " The criterion to ascertain a crime is not the mere form of 
process, but ^e nature of the ac t.o'' »migsjnn it it be~ a violation of a 
pubhc law, it is_a_crime or m isdemeanor. " We find the same doctrine 



cleai'ly stated in State v. Stearns, 31 N. Hamp. 106. 



3& STATE V. KEBNAN". [CHAP. I. 

Le t ua-fttwhHtottes l. A criminal form of proceeding is clearly 
authorized, and the act is an offence against the public and not an injury 
to an individual. Tive pen alty is not in the nature_ QLgaiB pensation^ to 
the city for a n injury sustained, but is de signed asa punishmen t for a 
wrong done~to the community -- a wrong prohibitedTbecause'it may 
-4'esat t Ifl hai ^m~or inoonvenielTce to individuals, who may or may not 
be inhabitants of the city. Thus tested the nature of the act as well 
as the form of process is clearly criminal. 

Two reasons are urged why a criminal prosecution cannot be main- 
tained and that the motion to dismiss should prevail. First, that the 
charter expressly provides that an action may be brought for the penalty 
in the name of the city treasurer, and that consequently that remedy 
alone must be pursued. But this argument overlooks the object of the 
bv-law, which is to prevent a nuisance, a matter in its nature criminal. 
It is no uncommon thing-for a statute to authorize an action to recover 
a penalty incurred by doing a forbidden act, even where a public prose- 
cution can be sustained, as is the case in all qui tarn actions. Here 
not onlj' a civil suit but a public prosecution is authorized in the charter. 
But to avoid injustice it is expressly provided that "no person shall 
be prosecuted both civilly and criminally for the same breach of a 
by-law." 

In the second place, it is contended that the right of imprisonment to 
coerce the payment of a penalty is not expressly' given ; and if not 
expressly granted, it cannot exist. This argument seems to beg the 
question b}' assuming that the sole object of the suit is to collect a 
penalty for the benefit of the city of New Haven ; whereas the real 
purpose of the bj'-law, and consequently of the action, is to suppress a 
public nuisance. For that purpose there can be no serious objection 
to putting in operation the powerand legal machinery of the state. 

We advise that the motion to dismiss be denied. . 

la this opinion the other judges concurred. 



SECT. 1.] WISPINGTON V. EDLINGTON. 3S 

CHAPTER II. 
THE OFFENCE. 



SECTION I. 

Felonies. 

KENNEL V. CHURCH. 

• CoKNiSH Etre. 1201. 

[1 Selden Soc. 7.] 

OsBERT Chukch, accused of the death of Roland, son of Reginald of 
Xennel, on the appeal of the said Reginald, was detained in gaol and 
defends word by word. And Reginald offers proof by the body of aK 
certain freeman, Arkald, who has his daughter to wife, who is to prove V 
in his stead since he has passed the age of sixty. Osbert Church 
-defends all of it. The knights of the hundred of Penwith saj' that they 
suspect him of the said death. The knights of Kerrier say the same. 
The knights of Penwith saj' the same. The knights of Pyder say the 
same. Judgment : let him purge himself by water. 

And Reginald is in mercy for he does not allege sight and hearing, 
and because he has withdrawn himself, and put another in his place, 
who neither saw nor heard and yet offered to prove it, and so let both 
^Reginald and Arkald be in mercy. 

Osbert is gurggd-by the water.^ 



WISPINGTON V. EDLINGTON. 

Lincolnshire Eyre. 1202. 

[1 Selden Soc. 10.] 

AsTiN of Wispington appeals Simon of Edlington, for that he 
■wickedly and in the king's peace assaulted him in his meadows and 
put_oul_hi8-eye-s»4Jia ^he is maimed of that jsyg ; and this he offers to 
■prove, &c. Simon comes and defends all of it word by word. And the 
coronors and the county testify that hitherto the appeal has been duly 
sued, at first by [Astin's] wife, and then by [Astin] himself. 

1 For cases on the modern law of Homicide see Chap. XIII. — Ed. 



34 EEX v. HUGH. [chap. II. 

Judgment: let law be made, and let it be in the election of the ap- 
pellee whether he or Astin shall carry the iron. He has chosen that 
Astin shall carry it. Astin has waged the law. Simon's pledges Wil- 
liam of Laud and his franljpledge and Ralph of Stures. Astin's pledge, 
Roger of Thorpe, Osgot of Wispingtou, and William, Joel's brother. 

Afterwards came [the appellor and appellee] and both put themselves 
in mercy. 



JORDAN DE HORMED v. WALTER HACON. 

Hertford Eyre. 1198. 
[1 Rotuli Curiae Regis, 160.] 

Jordan of Hormed appeals Walter Hacon for that in the peace of the 
king and wickedly in felony he assaulted him in his house at Strange near 
Ikenton, aridwojiaded--biHi4nthe head andinjiifijiand ; and he shows 
the wounds and offers to pr&ve it Irfms bodj- aS~the court shall 
consider. 

Walter defends all, word for word, against him as against a champion 
hired and paid, who twice had started on this course and as often retired 
without completing it. 

Jordan denies that he is a champion, and pursues his suit against him. 

And a jury of knights testifj' that on another opcasion he had appealed 
him of the robbery- of a sword and cape of which he now made no 
mention. 

They are to have a day at Dunstable.^ 



REX V. HUGH 

Cornish Eyre. 1302. 

[Year Book 30 ^ 31 Ed. I, 529.] 

H. was presented by the twelve of Y. , for that he seized a certain 
girl, and carried her to his manor in a certain vill, and carnally knew 
her against her will. 

H. was brought to the bar by Brian and Nicholas de N. 

The Justiciar. Brian, we are given to understand that you would 
have induced the prisoner not to put liimself upon the jury which ac- 
cused him, and you have done ill, but because he is j-our relative, we 

1 Foi' cases on the modern law of Assault see Chap. XIII., Sect. II. — Br> 



SECT. I.J EEX V. HUGH. 35 

are willing that you should stand by him, but not that you should act 
as his counsel. 

Brian. My lord, he is my relative, but I wish to disprove this, &c., 
and I desire that it should be well with him ; but he will be well ad- 
vised by me to refuse his common law. And lest I should be at all 
suspected of strife, I will withdraw. 

The Justiciar. Hugh, the presentment is made to us that you 
carried off, &c., as is set forth; how will you acquit yourself? 

Hugh. My lord, I pray that I may have counsel, lest I be undone 
in the King's court for lack of counsel. 

The Justiciar. You must know that the king is a party in this case, 
and prosecutes ex officio; therefore the law in this case does not suffer 
j'ou to have counsel against the king, who prosecutes ex officio; but if 
the woman should proceed against you, you might have counsel against 
her, but not against the king. And therefore we order on the king's 
behalf that all pleaders of your counsel withdraw. (These were removed.) 
Hugh, answer. You see the thing charged against you is a very possi- 
ble thing, and a thing of j'ourown doing ; so you can well enough, with- 
out any counsel, answer whether you did it or not. Moreover, the law 
ought to be general, and applicable to all persons ; and the law is that 
the king is a party ex officio., against whom one shall not have counsel ; 
and if, in contradiction to law, we should allow 3'ou counsel, and 
the Jury should give a verdict in your favor (as, please God, they will 
do), people would say that you were acquitted bj' reason of the favor 
of the Justiciars ; consequently we do not dare grant your request, 
nor ought you to make it. Therefore, answer. 

Hugh. My lord, I am a clerk, and ought not to be required to 
answer except unto my ordinary. 

The Justiciak. Are j-ou a clerk ? 

Hugh. Yes, my lord, for I have been rector of the church of N. 

Ordinary. We demand him as a clerk. 

Hugh. He speaks for me. 

The Justiciar. We say that you have forfeited your benefit of 
clergj', inasmuch as you are a bigamist, having married a widow ; tell 
us whether she was a virgin when you married her ; and it is as well to 
know the truth at once as to delay, for we can find out in a moment 
from a jury. 

Hugh. My lord, she was a virgin when I married her. 

The Justiciar. This should be known at once. And he asked the 
twelve whether Hugh, &c., who said on their oath that she was a 
widow when Lord Hugh married her. But note that they were not 
sworn anew, because they had been sworn before. 

The Justiciar. Therefore this court adjudges that you answer as 
a layman, and agree to those good men of the twelve ; for we know 
that they wiU not lie to us. 

Hugh. My lord, I am accused by them ; therefore I shall not agree 



36 EEX V. HUGH. [chap. H. 

to them. Besides, my lord, I am a knight, and I ought not to be tried 
except by my peers.^ 

The Justiciar. Since you are a knight, we are willing that j-ou be 
judged by your peers. And knights were named ; and he was asked if 
he wished to propound any challenges against them. 

Hugh. My lord, I do not agree to them ; you shall take whatever 
inquisition you will ex officio, but I will not agree. 

The Justiciar. Lord Hugh, if you will agree to them, God willing, 
tliey will find for you if you will only consent to them. But if you will 
refuse the common law, you will incur the penalty therefor ordained, to 
wit, " one day you shall eat, and the next daj' you shall drink ; and on 
the day when you drink you shall not eat, and e contra ; and }'ou shall 
eat barley-bread, and not wheaten-bread, and drink water," &e. ex- 
plaining many reasons why it would not be well to delay at this point, 
but would be better to agree to' these. 

Hugh. I will agree to my peers, but not to the twelve by whom I 
am accused ; wherefore hear my challenges against them. 

The Justiciar. Willingly ; let them be read ; but if you have any- 
thing to say wherefore they ought to be removed, say it with j'our own 
voice or in writing. 

Hugh. My lord, I pray counsel, for I cannot read. 

The Justiciar. No, for it is a matter touching our Lord, the King. 

Hugh. Do you take them and read them. 

The Justiciar. No, for they ought to be proposed by your own 
mouth. 

Hugh. But I cannot read them. 

The Justiciar. How is this, that you would have claimed your 
benefit of clergy, and cannot read your challenges ? (Hugh stood silent 
in confusion.) Do not be struck dumb, now is the time to talk. (To 
Lord N. de Leyc.) Will you read Lord Hugh's challenges ? 

Lord N. My lord, if I do, let me have the book which he has in his 
bands. (After receiving it) My lord, here are written challenges against 
several ; shall I read them aloud? 

The Justiciar. No, just read them secretly to the prisoner, for they 
ought to be offered by his own mouth. And so it was done. And 
when they had been offered by his own mouth, since they were found 
true challenges, those against whom they were offered were removed 
from the inquisition. 

The Justiciar. We challenge Lord Hugh of j-apg^ of a certain 
woman, he denies it, and is asked how he will be tried ; he says by a 
good jury ; wherefore for good or ill he puts himself upon you ; and so 

'^ Magna Charta (9 H. 3.) c. 29. No freeman shall be taken, or imprisoned, or be 
disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any 
otherwise destroyed; nor we will not pass upon him nor condemn him, but by lawful 
judgement of his peers, or by the law of the land. We will sell to no man, we will 
not deny or defer to any man either justice or right. 



SECT. I.] NORRIS V. BUTTINGHAM. 37 

we enjoin you by virtue of your oath, tell us whether Lord Hugh ravished 
the aforesaid woman or not. 

The Twelve. We say that she was ravished by force by Lord Hugh's 
men. 

The Justiciar. Was Hugh consenting to the act or not? 

The Twelve. No. 

The Justiciar. Did they know her carnally ? 

The Twelve. Yes. 

The Justiciar. Was the woman unwilling or consenting? 

The Twelve. Consenting.^ 

The Justiciar. Lgrd Hugh, since they acquit you, we acquit you. 



FABIAN V. GODFREY. 

Wiltshire Eyre. 1198. 
[Abhreviatio Placitorum, 17.] 

Fabian appealed Godfrey Spileman's son for that he and Roger his 
son and Humphrej' his man wickedly at night burned his dwelling 
house ; and this he offers to prove against him as of his own sight, as 
the court of our lord the king shall determine, considering that he is a 
man over age. And Godfrey defends for himself and his fellows. 

The jurors being asked, said that they do not believe that Godfrey 
or any of his fellows did this; and that Fabian is a man who often goes\ 
out of his head.^ 



NORRIS V. BUTTINGHAM. 

Strafford Eyre. 1198. 

[1 Rotuli Curim Regis, 205.] 

The jurors say that William Norris appealed William de Buttinghara 
and Robert his son for that in the peace of the king, wickedly and in 
hamsoke they robbed from him six shillings and sixpence of his chat- 
tels, and robbed from his possession twentj'-four lambs, and broke the 
doors of his house in his possession, and [robbed from him] chattels 
to the value of ten shillings ; and this he offers to prove by his body as 
the court shall consider. 

William and Robert defend all, word by word ; and they say that 
Maurice held of the said William in fee; and at his death William 
entered into his fee, and Alexander Fitz-Philip hired of him in the fee 

1 Credo quod deberet hie quod iamen post defuit. — Eep. 

* For cases on the modem law of Arson, see Chap. XVIII. — Ed. 



38 LUKE DE BEOOHESHBVET V. WALTER DE MAKBN. [CHAP II. 

a pasture for twenty-five sheep. And afterwards this William Norris 
came to that fee and carried away the lambs and put them in another 
fee and detained them; so that the said William de Buttingham and 
Robert his son went to William Fitz-Gerard, Serjeant of the hundred, 
and through him regained possession of the sheep by replevin. And 
the Serjeant testified to this fact. 

And the whole county testify that men are thus appealed according 
to their custom. 

It is considered that the appeal against them is null. Judgment: 
William Norris is amerced for a false appeal, and William and Robert 
are acQuittad.' 



REX V. HUGH. 

Wiltshire Etre. 1198. 
[Abbreviatio Placitorum, 19.] 

EoBBET DE LucT was robbed by Hugh Brien's brother and Nicholas 
Fitz-priest and EUas a relative of Brien's wife, and many others whom 
the jurors (^are unable ?] to enumerate, intjran -nf ]Ttir ; and the robbers 
have not come to the peace of our lord the king. And Brian is out- 
lawed. And Hugh his brother and Nicholas Fitz-priest and Elias the 
relative of Brien's wife are to be sought tlirough the county ; and 
'Unless they appear let them be judged by law of the county." 



LUKE DE BROCHESHEVET v. WALTER DE MAREN. 

Hertford Eyre. 1198. 

[1 Rotuli Curiae Regis, 160.] 

The jurors say that'Luke of Brocheshevit appealed Walter of Maren 
and Godfrey Trenchevent of t.hp^ theft, nf a fl"w- Walter was essoined 
as beyond sea. And Godfrey does not come. His pledge was William 
of Maren ; so he is in mercy. 

They say likewise that the said Luke appealed the said Walter for 
that in the peace of the king, and in felony he stole his wife Felicia 
and his seal and his chattels to the value of one hundred shillings ; and 
this he offers to prove as the court shall consider. It is to await the 
coming of the justices.^ 

1 For cases on the modern law of Burglary, see Chap. XVIII. — Ed. 

* For cases on the modern law of Robbery, see Chap. XIV., Sect. XVII. — Ed. 

' For cases on the modern law of Larceny, see Chap. XIV. — Ed. ' 



SECT. II.j REX V. COOK. 39 

HUGH OF KUPERES v. JOHN OF ASHBY. 

LiiscolnkShirb Eyre. 1202. 
[1 Selden Soc. U.] 

Hugh of Euperes appeals John of Ashby for that he in the king's 
peace and wickedly came into his meadows and depastured them with 
his cattle, and this he oflFers, etc. And John comes and defends all of 
it. And whereas it was testified by the sheriflF and the coroners, that 
in the first instance [Hugh] had appealed John of depasturing his 
meadows and of beating his men, and now wishes to pursue his appeal 
not as regards his men, but only as regards his meadows, and whereas 
an appeal for depasturing meadows does not appertain-fce-tiie'crowrrof 
our lord the Emg, It l ij ooiibidercd that th u " a pp^Tis nuU, and so let 
Sug'U by Hi mUrwy and John be quit. 

Hugh is in custody, for he cannot find pledges. 



SECTION n. 

Misdemeanors. 



REX V. COOK. 

MiDDLESKx Sessions. 1696. 

[Reported Comberhach, 382,] 

Upon an indictment setting forth that Sir John Friend and Sir Wil- 
liam Perkins being attainted and about to be executed at Tyburn for 
high treason, etc., tb g^defendants, conspir ing and intending-( ao mu eh 
as in them lay) t.n jpstify, nr at ipast; in i!frT.A»ing.tS~gnH lessen their 
crimes, and to induce his majesty's subjects to believe that they died 
ratlier as martyrs than as traitors, and to incite the king's subjects to 
commit the like treasons, they did take upon the m to absolve, flud did. 
pronounce a forrnri f ahsnlntinn of the rn. the said hir William Perkins 



and Oil JohirFriend, without any repentance, or any signs of repent- 
ance by them given. 

It was proved that the defendants asked the criminals the several 
questions directed by the rubrlck in the oflflce of visitation of the sick, 
and Mr. Cook pronounced the words of absolution of- one of the 
traitors, Mr. Snatt and one Mr. Collier (who is not now indicted) lay- 
ing their hands upon his head, and after the words pronounced saying 
Amen ; and Mr. Collier pronounced the words as to the other traitors, 
they all three laying on their hands, etc. 

It was proved that the defendants were earnestly requested by Sir 
William Perkins and Sir John Friend to assist them at the place of 



40 STATE V. JACKSON. [cHAP. II. 

execution ; and therefore the jury were directed to acquit them of the 
conspiracy, though the Attorney General said the indictment was not 
for conspiracy, and conspirantes was put adjectively only to introduce 
the other matter, and therefore was not material. 

And Holt [L. C. J.] directed the jury that this proceeding of the 
defendants was certainly scandalous and irregular ; for if the criminals 
had before made a private confession, the absolution should have been 
private likewise ; but if they would give a public absolution, they ought 
to have required as public a confession, and particularly with respect 
to those crimes for which they were attainted, being so notorious, etc. 
However, il-the- iurv were of opinion thatthejjidJfc-ouly igitefantly 
^id v-Y "2V<-« V ('" wii;,^Vi 17000 if i.!i pro perl y conu sable in the Spatitual 
court;, then to a cquit them ; but if th ey ^id it with a jlB s i gnto affro nt 
jhu guveriltlie nt, and to vilify the justice of the nation, then to find 
them guilty. ~~ "^ ~ 

But at The instance of the defendant's counsel it was directed to be 
, found specially that Snatt laid his hand on the head, and was assistant 
while the other pronounced the words of absolution, and afterwards 
Snatt said Amen (it being laid quod pronuntiaverunf). 

And accordingly the jury acquitted them of the conspiracy, and found 
Cook guilty of the rest ; and as to Snatt, ut supra} 



STATE V. JACKSON. 

Supreme Judicial Court of Maine. 1881. 

[Reported 73 Maine, 81 .] 

LiBBET, J. This is an indictment against the defendant for unlaw- 
fully and wilfully attempting to influence a qualified voter to give in 
his ballot at a municipal election, in the city of Rockland, by offering 
and paying him money therefor. 

The offence charged is not within R. S., c. 4, § 67. 

Isjjribgi y .it a municipal elauliuu a im a4ftm£atiar_atcommon law in 
thisstatai — Itas claimed by the learned counselfor the defendant, 
thafltis not recognized as such in this country. ^Ee_think-it-465 — It 
was an.o fi ftioo at coniinuii la tv - 4 B-Enylaud. 1 Russell on Crimes, 154 ; 
Plympton's Case, 2 Ld. Raym. 1377 ; Rex v. Pitt, 3 Burr. 1335. 

The common law of England upon the subject of bribery, fraud and 
corruption at elections, is generally adopted as the common law in 
this country. Comm. v. Silsbeee, 9 Mass. 417 ; Comm. v. Hoxey, 16 
Mass. 885 ; 1 Bish. Crim. Law, 355 ; Walsh v. The People, 65 IlL, 58 ; 
State V. Purdy, 36 Wis. 224 ; State v. Collier, 72 Mo. 13 ; People v. 
Thornton, 32 Hun (N. Y.) 456 ; Comm. of Penn. v. McHale, 97 Pa. 397. 

Bishop in his work on Criminal Law, vol. 1, § 922, says : " We see it 
to be of the highest importance that persons be elected to carry on the 

> See Rex v. Noel, . Coml). 362 ; Penna. 0. Morrison, Add. (Pa.) 274. —Ed. 






SECT. II.J COMMONWEALTH V. SILSBEE. 41 

government in its various departments, and that in every case a suit- 
able choice be made. Therefore any act tending to defeat these I 
objects, as forcibly or unlawfully preventing an election being held, 
bribing or corruptly influencing an elector, casting more than one vote, 
is punishable under the criminal common law." 

Paxon, J., in the opinion of the court in Comm. v. McHale, supra, 
says: "We are of opinion that all such crimes as especially affect 
public society, are indictable at common law. The test is not whether 
precedents can be found in the books, but whether they affect the 
public policy or economy. It needs no argument to show that the acts 
charged in these indictments are of this character. 1|hey a rejxot-eBJy 
offences whif-|i affpct pn'-li' m i I 'i i' ty. l iii li l l if'y filTt^fTi ll i In TI i h ^ i rv " '!' - 

nnp.r. A n offence against the fr eedom and puri ty o^ *^'^ olontmn 
is a crime a gainst the nation " JJ l strikes at the f nnnrlat.inn r>f rppnl-ili- 
CaTiimitTtiJtrons. Its tendency is to prevent the expression of the will 
of the people intne choice of rulers, and to weaken the public confi- 
dence in elections. When this confidence is once destroyed, the end 
of popular government is not distant. Surely if a woman's tongue 
can so far affect the good of society as to demand her punishment as a 
common scold, the offence which involves the right of a free people to 
choose their own rulers in the manner pointed out by law, is not be- 
neath the dignity of the common law, nor beyond its power to punish. 
The one is an annoyance to a small portion of the body politic, the 
other shakes the social fabric to its foundations." 

We have no doubt that bribery at a municipal election is a misde- 
meanor punishable hy the common law of this state. 

An attempt to bribe or corruptly influence the elector, although not 
accomplished, will submit the offender to an indictment. State v. 
Ames, 64 Maine, 386. 

But admitting that attempting to bribe an elector at a municipal 
election is an offence at common law, it is claimed by the counsel for 
the defendant that the indictment in this case does not properly charge 
such offence. ^ 

Exceptions overruled. Judgment for the State? 



COMMONWEALTH v. SILSBEE. 
Supreme Judicial Court op Massachusetts. 1812. 

\Rej>oHed 9 Massachusetts, 417.] 

The indictment charged that the defendant, being admitted as a 
legal voter at the town meeting holden on the eleventh day of March, 
(1811, at Salem, for the choice of town oflScers, "did then and there 

* In the subsequent portion of his opinion the learned judge held that this claim 
was unfounded. — Ed. 

2 Ace. Taylor's Case, 12 Mod. 314 ; Reg. v. Lancaster, 16 Oox, C. C. 637 ; State v, 
Davis, 2 Peunew. (Del.) 139 ; State v . Ellis, 33 TS. J. Law. 102. 



42 COMMOXWEALTH V. SILSBEE. [CHAP. II. 

wilfully, fraudulently, knowingly, and designedly give in more than 
one vote for the clioice of selectmen for said town of Salem at one 
time of balloting ; to the great destruction of the freedom of elections, 
to the great prejudice of the rights of the other qualified voters in said 
town of Salem, to the evil example of others in like case to offend, 
and against the peace and dignity of the Commonwealth aforesaid, and 
the law of the same in such case made and provided." 

After conviction the defendant moved in arrest of judgment, on the 
ground of the insufficiency of the indictment. 

Dane, for the defendant. Here is no offence charged. The defend- 
ant put more than one vote for selectmen into the box at one time ; 
and he might well do this, since not less than three selectmen were to 
be voted for. 

The offence, if any is described in the indictment, cannot be such 
by the common law, since that law knows nothing of the office of 
selectmen. If the offence is created by statute, the indictment ought 
to conclude contra formam statuti ; and if the conclusion of this be 
considered so, it belongs to the government to produce the statute 
against which the offence was committed. But none such can be 
found ; and the usual punishment applied to the act, that of rejecting 
the party's vote, is probably all that the government thought necessary 
or convenient. 

By the Statute of 1795, c. 55, a fine not exceeding twenty nor less 
than ten dollars was provided for such as should give in more than 
one vote in the election of State officers. It appears that the Legisla- 
ture did not contemplate that offence, though of an higher grade than 
that here intended to be prosecuted, wortliy of the severe punishment 
which may by the common law be imposed on misdemeanors. Indict- 
ments of this kind are of late origin, which is an argument that they 
do not lie at common law. 

No fraud is alleged in the indictment ; for as to the general words 
" fraudulently,'' &c., they have no operation, being merely formal. 

Tlie Solicitor-General insisted that this was a fraud, upon which the 
common law would animadvert. It was a direct infringement of the 
highest political rights of others. The indictment, as to its form, is 
conformed to the provisions of the statute of 1800, c. 74, respecting 
the votes to be given for the governor, &c. of the Commonwealth. 
The mischief is growing in various parts of the Commonwealth, and 
unless restrained will shortly destroy the purity of our elections, and 
with that will go our most valued political institutions. 

Curia. There cannot be a doubt that the offence described in the 

' indictment is a misdemeanor at common law. It is a general prin- 

I i ciple that where a statute gives a privilege, and one wilfully violates 

jf snch privilege, the common law will punish such violation. In town 

meetmgs every qualifie d voter has equal rights^and_is_eiilitlediQl^e 

<; gne vote for e very otKcer to bti tila:j;iii]j. The persoiiwho givoa tt^q to 

infringes ann \ loi.'dl^M-tho right r - of the other vo ters, a nd for this 



SECT. II.J EEX V. IVENS. 43 

offence the common law gives the indictment; and the conclusion of 
the one at bar is proper for the case. 

The defendant was adjudged to pay a fine often dollars 
with the costs of prosecution.^ 



REX V. JONES. 

King's Bench. 1740. 

[Reported 2 Strange, 1 146.] 

Hk was indicted for not taking upon him the office of overseer of the 
poor, upon a regular appointment ; and on demurrer objected, that as 
he was to take no oath, and the 43 Eliz. c. 2, had inflicted pecuniary- 
penalties for neglect of Aaiy to be recovered in a summary way, he 
could not be indicted. 

Sed per Curiam, those penalties are for neglect of duty when he is 

the officer, whereas this indictment says he has obstinatel}- refused to 

take the office upon him : the disobeyin g an act of Parliament ia indint 

able upon the principles of the common law. \ 

CL -^ ' Judgment for the King!' 



REX V. IVENS. 

Oxford Circuit. 1835. 

[Reported 7 Car. 4r Payne, 213.] 

Indictment against the defendant, as an innkeeper, for_nQl-rfiCfiii=- 
ing Mr.^Samuel Probyn Wiliiiiuis m> it g'ue&t al hts~inn, and als g. for 
Drse. I'he first count of the indictment averred 



tiaTuie prosecutor had offered to pa}' a reasonable sum for his lodg- 
ings ; and the first and second counts both stated that there was room 
in the inn. Tiie third count omitted these allegations, and also omitted 
all mention of the horse. The fourth count was similar to the third, 
but in a more general form. Plea — Not guilty. 

It was opened by Whitmore, for the prosecution, that the defendant 
kept the Bell Inn, at Chepstow, and that the prosecutor Mr. Williams 
ha<l gone there on horseback, on the night of Sunda}- the 14th of April ; 
and that the defendant and his wife both refused him admittance into 
the inn. 

Godson, for the defendant. — Does your Lordship think that an 
indictment lies against an innkeeper for refusing to receive a guest? 

1 Ace. Com. 0. Hoxey, 16 Mass. 385. 

2 See Hungerford's Case, 11 Mod. 142. 



44 REX V. ivENS. [chap, ir, 

I know that an action may be brought against him if he does so ; and 
such an action was brought against an innkeeper at Lancaster a lew 
j'ears ago. This is only, at most, a private injury to Mr. Williams, 
and not an offence against the public. 

Coleridge, J. There can be no doubt that this indictment is sus- 
tainable in point of law. Mr. Serjeant Hawkins distinctly lays it down 
that an indictment lies for this offence.^ 

Coleridge, J. (in summing up). The facts in this case do not 
appear to be much in dispute ; and though I do not recollect to have 
ever heard of such an indictment having been tried before, the law 
app licable to this case is thj a.1. thnt nn indiotmnnt lieg^ against an 

"Tnrilrpppprwhn ^rpfnHps to receive a guest, hebaying Bt tha tnjieroom. 
inTiis house;and either the price~oi ine ameetVeirtM ^nmeutoer ng 
■i Smfe TCd lu hiu], of tiu ch uiicumsUmiS S^eeetrrring it s - will dieponeo wi -th. 
that te ndetr-^yhis lawTs fouiiUedin good sense. The innkeeper is not 
to select his guests. He has no right to say to one, von shall come 
into my inn, and to another you shall not, as ever^"^ one coming and 
conducting himself in a proper manner has a right to be received ; and 
for this purpose innkeepers are a. .sort of public servants , they having 
in return a kind oi' privilege ot entertaining travellers, and supplying: 
them with what they want. It is said in the present case that Mr. 
Williams, the prosecutor, conducted himself improperly, and therefore 
ought not to have been admitted into the house of the defendant. If 
a person came to an inn drunk, or behaved in an indecent or improper 
manner, I am of opinion that the innkeeper is not bound to receive him.^ 
You will consider whether Mr. WiUiams did so behave here. It is^ 
next said that he came to the inn at a late hour of the night, when 

-prSRably the family were gone to bed: — Have we iiSTall knocked at inn 
doors at late hours of the night, and after the familj' have retired tO' 
rest, not for the purpose of annoyance, but to get the people up? In 
this case it further appears that the wife of the defendant has a con- 
versation with the prosecutor, in which she insists on knowing his- 
name and abode. I think that an innkeeper has no right to insist on 
knowing those particulars ; and certainly you and I would think an 
innkeeper very impertinent, who aslced either the one or the other 
of any of us. However, the prosecutor gives his name and residence; 
and supposing that he did add the words " a nrl he Ha mnrd tn ynuj' is 
that a sufficient reason for keeping a man oiiV of an inn who has 
travelled till midnight? I think that the prosecutor was not guilty 
of such misconduct as would entitle the defendant to shut him out 
of his house. It hasj men strongly o bjected against the prosecutor 
by Mr. (rndiion.—tM:frh^Jmd_hppn t.rgvplling rvTfn^jgnfTp^T.^ — Te-makfi. 

_that_a*g«fflBTit OI any avaiTTitrnust be contended~ttTat travelling on 
a Sunday is illegal. It is not so, although it is what ought to be 
avoided whenever it can be. Indeed there is one thing which shows 

1 The evidence is omitted — Ed. 



SECT. II.] CEOUTHER'S CASE. 45 

that travelling on a Sunday is not illegal, which is, that in many places 
you pay additional toll at the turnpikes if you pass through them on 
a Sunday, by which the legislature plainly contemplates travelling on 
a Sunday as a thing not illegal. I do not encourage travelling on Sun- 
days, but still it is not illegal. With respect to the non-tender of 
money by the prosecutor, it is now a custom so universal with inn- 
lieepers, to trust that a person will pay before he leaves an inn, that 
it cannot be necessary for a guest to tender money before he goes into 
an inn; indeed, in the present case no objection was made that Mr, 
Williams did not make a tender ; and thej' did not even insinuate that 
they had any suspicion that he could not pa^' for whatever entertain- 
ment might be furnished to him. I think, therefore, that that cannot 
be set up as a defence. It however remains for me next to consider 
the case with respect to the hour of the night at which Mr. Williams 
applied for admission ; and the opinion which I have formed is, that 
the lateness of the hour is no excuse to the defendant for refusing.' to 
receive the prosecutor into his inn. Whj' are inns established? for 
the reception of travellers, who are often very far distant from their 
own homes. Now, at what time is it most essential that travellers 
should not be denied admission into the inns? I should sa}- when they 
are benighted, and when, from any casualty, or from the badness of 
the roads, they arrive at an inn at a verj' late hour. Indeed, in former 
times, when the roads were much worse, and were much infested with 
robbers, a late hour of the night was the time, of all others, at which 
the traveller most required to be received into an inn. I jthinkj tbe*€- 
fore, that if th e traveller conducts himself pro pp^lg, \W '""'rppp^r^ 
■-is bound to admit him, at whatever hour of th e night he may -nrrivp . 
':^e-uuly Other question lii this case is, whether the defendant's inn 
was full. There is no distinct evidence on the part of the prosecution 
that it was not. But I think the conduct of the parties shews that the 
inn was not full ; because, if it had been, there could have been no use 
in the landlady asking the prosecutor his name, and saying, that if 
he would tell it, she would ring for one of the servants. 

Verdici Guilty. 
Pabk, J,, sentenced the defendant to pay a fine of 20s.^ 



CROUTHER'S CASE. 

Queen's Bench. 1598. 

[Reported Croke Elk. 654.] 

Crouther was indicted, for that a burglary was committed in th^ 
night by persons unknown, and J. S. gave' notice thereof unto him 
being then constable, and required him to make hue and cry, and he 
* See Eex v. Taylor, Willes, 638 note; Reg v. James, 2 Den. C. C. 1. 



\ 



46 , COMMONWEALTH V. CALLAGHAN. [CHAP. II. 

refused, etc. Exception was taken to the matter of the indictment, 
because it hath been adjudged that an hundred shall not be charged 
with a robbery committed in the night, because they are not bound to 
give attendance ; no more ought a constable to do it in the night. But 
all iJTprViiirt-. hplii thn indii lilli iil li'i bi nronrljjTn^iT'tlTitnndinn; ; for it is 
not Iiketo the casa^ an hundred-riro cauae ilTirTtl'ti C0iwm| il|^^'1"'j'i~ 
upo ii nSticefflven unto him, presently to pnrsne.i And itr was said 
""that in every case where a statute prohibits anything, and doth not 
limit a penalty, the party offending therein may be indicted, as for a 
contempt against the statute.^ 

Another exception was taken, because he did not shew the place of 
the notice ; and that was held to be material. Whereupon the party 
was discharged. 

COMMONWEALTH v. CALLAGHAN, 

General Court of Virginia. 1825. 

[Reported 2 Virginia Cases, 460.] 

This was a case adjourned by the Superior Court of Law of Alleghany 
County. The case itself is fully set forth in the following opinion of 
the General Court, delivered bj' Barbour, J. : — 

This is an adjourned case from the Superior Court of Law for the 
County of Alleghany. 

It was an information filed against Callaghan and Holloway, two of 
the justices of Alleghany, alleging in substance the following charge: 
That at a court held for the county of Alleghany, there was an election 
for the office of commissioner of the revenue and of clerk of said court, 
when the defendants were both present, and acting in their official 
character as magistrates in voting in said election ; that the defendant 
Callaghan, in said election for commissioner of the revenue, wickedly 
and corruptly agreed to vote, and in pursuance of said corrupt agree- 
ment did vote, for a certain W. G. Holloway, to be said commissioner, 
in consideration of the promise of the defendant Holloway that he 
would vote for a certain Oliver Callaghan to be clerk of said court ; 
and that the defendant Holloway in the said election of clerk wickedly 
and corruptly agreed to vote, and in pursuance of said corrupt agree- 
ment did vote, for a certain Oliver Callaghan to be said clerk, in con- 
sideration of the promise of the defendant Callaghan that he would vote 
for the aforesaid W. G. Holloway to be commissioner. To this infor- 
mation the defendants demurred generally, and there was a joinder in 
tte-demurrfii:,— -The Superior Court of Law of Alleghany, with the 
assent of the defendants, adjourned for novelty and diflficulty to this 
court the questions of law arising upon the demurrer to the informa- 
tion, and particularly the following, namely : — 

1 See Keg. u. Wiatt, U Mod. 53 ; State v. Haywood, 3 Jones (N. C), 399. 
* See State v. Parker, 91 N. C. 650. — Ed. 



SECT. Il] COMMONWEALTH V. CALLAGHAN. 47 

1. Is there any offence stated in said information for which an infor- 
mation or indictment will lie ? 

2. Is the offence charged in the said information within the true 
intent and meaning of the Act of the General Assembly entitled " An 
Act against buying and selling offices," passed Oct. 19, 1792, in page 
559, 1st vol. Rev. Code of 1819? 

3. If the offence be within the said act, is the information filed in 
this case a good and sufficient information ? 

The first and second questions, for the sake of convenience, will be 
considered together. 

It is proper to premise that a general demurrer admits the truth of 
all facts which are well pleaded ; there being such a demurrer in this 
case, and the information distinctly alleging that the defendants, in 
giving their votes respectively, acted wickedly and corruptly, such 
wicked and corrupt motive will be considered throughout as forming a 
part of the case. 

The court are unanimously of opinion that the case as stated in the 
information is not within the true intent and meaning of the Act of 
Assembly referred to in the second question. That act embraces two 
descriptions of cases : 1. The sale of an office or the deputation of an 
office ; 2. The giving a vote in appointing to an office or the deputa- 
tion of office. It would be within the latter description that this case 
would fall, if within either ; but the court are decidedl3' of opinion that 
this case does nnt_fa11 w'tlivn r,his HpsnripT.irtn^ hpvjflnai^ ttie_ plain con- 
— stiHieSw^tTKjSe^statute is that the penalties which it denounces are 
^ ^ItiTod onlyhy thooc who reeeive -ui Uku. nil.lmj Lilirttti l ly <)!■ Ii i ili i' tj(i r , 1 vr . 
any money, profit, &c., or the promise to have any money, profiE & c.. 
"^to thtjir 6wn use or for tEeir ownbenen t. In this case it appears from 
the iuPurUJation thatthe promise of each of the defendants to the other, 
which constituted the consideration of the vote of that other, and the 
vote given in consequence of such promise, inured not to the benefit of 
the defendants or either of them, but to the benefit of others. If indeed 
it had been alleged in the information that the persons for whom the 
votes were given, were, if elected, to have held them upon any agree- 
ment, that the defendants should in any degree participate in their 
profits or receive from the holders of them any benefit or advantage, 
the case would have been different, for then the defendants would have 
received a profit indirectly, and thus would have fallen within the stat- 
ute ; but there is no such allegation. 

The court being thus of opinion that this case was not embraced by 
the statute, but at the same time considering that that S3stem of crim- 
inal jurisprudence must be essentially defective which had provided no 
punishment for acts such as are charged in the information, and which 
merit the reprehension of all good men, were led to inqui re whether the 
acts charged in the infnrmat.iQn did notTcnnsriT ute an oit'ence at^ ominon 
1nw 'i ind ThrynJT nfopininn tlint thi-r dn 

JmretationTothose offences which Tiae to the grade of felony there 



48 COMMONWEALTH V. CALLAGHAN. [CHAP. II. 

is usually, particularly in the designation of them by name, an accuracy 
in the definition ; as, for example, murder, burglary, arson, &c., in 
each of which the term ex vi termini imports the constituent of the 
offence ; but in the general classification of crimes whatever is not 
felony is misdemeanor. In relation to these, then, they are not only 
numerous but indefinitely diversified, comprehending every act which, 
whilst it falls below the grade of felony, is either the omission of some- 
thing commanded or the commission of something prohibited by law. 
As to these the law can do no more than lay down general principles, 
and it belongs t6 the courts of the country to apply those principles to 
the particular cases as they occur, and to decide whether they are or 
are not embraced by them. T^.s the law^ a j3-eneral-f»ff»pbsition, 
prohibits the doing of any act wBTgtrt5~gQH g5I&fl»^*-^2tgrgg- The par- 
ticnteracts which come up to this description it is impossible to include 
in any precise enumeration ; they must be decided as they occur, by 
applying this principle to them as a standard. Thus, again, it is now 
established as a principle that the incitement to commit a crime is itself 
criminal under some circumstances. 6 East, 464 ; 2 East, 5. As for 
example, the mere attempt to stifle evidence, though the persuasion 
should not succeed. Cases of this kind may be as various as the vary- 
ing combinations of circumstances. 

To come more immediately to the present case, we hold it to be a 
sound doctrine that the acceptance of every office implies the tacit 
agreement on the part of the incumbent that he will execute its duties 
with diligence and fidelity. 5 Bac. Abr. 210, Offices and Officers, Let- 
ter M. We hold it to be an equally sound doctrine that all officers are 
punishable for corruption and oppressive proceedings, according to the 
nature and heinousness of the offence, either by indictment, attach- 
ment, action at the suit of the party aggrieved, loss of their offices, &c. 
5 Bac. Abr. 212, Letter N. 

A nd further, that all wilful breach es nf t.hp rlnt.y nf an nffipp gr.e fnr- 

feitures of it, and also punishable by fine (Co. Litt. 233, 234), because 
•=gvery bftlce is mstitutea, not for the salce'of the officer, but for the good 
of another or others ; and, therefore, he who neglects or refuses to 
answer the end for which his office was ordained should give way to 
others, and be punished for his neglect or oppressive execution. 

Let us apply these principles to the present case. The defendants 
were justices of the peace, and as such held an office of high trust and 
confidence. In that character they were called upon to vote for others, 
for offices also implying trust and confidence. Their duty required 
them to vote in reference only to the merit and qualifications of the 
officers, and yet upon the pleading s in tliig ^casgSt^ jppears th at \hey 
wiclifidly-aiid uuiTUpHy-;Kiolated their duty and betraved the confide nce 
^posed in them, bv vo tingllli dor the -iufllTence of a corrupt hfl.rgaln or 
reciprocal promise, bywiiich they had come under a reciprocal obliga- 
tion to vote respectively for^^rticular pe rson, j a_mattcr hojacggferior 
the qualifications to their comj^titors.. it would seem, then, upon 



SECT. II.J SEX V. SEYMOUR. 49 

these general principlea that the ofTence in the information is indictable 
at common law. But there are authorities which apply particularly to 
the case of justices. In 1 Bl. Com. j5 4, n. 17, Christian, it is said if a^ 
imgistrate abuse his authority fro m corrupt motives he is p jinishalile 
cmntHa Hy by iuJiiiLiiieuL or Intormation. • 

— Jtgaiii, where magistrates have acted partially, maliciously, or cor- 
ruptly, they are liable to an indictment. 1 Term Kep. 692 ; 1 Burr. 
556 ; 3 Burr. 1317, 1716, 1786 ; 1 Wils. 7. An instance of their acting 
partially is that of their refusing a license from motives of partiality, 
the form of the indictment for which is given in 2 Chitty's Crim. Law, 
253. 

We are then of opinion, for the reasons and upon the authorities 
aforesaid, that the oifence stated in the information is a misdemeanor 
at common law for which an information will lie, but that it is not 
within the statute referred to. 

In answer to the third question we are of opinion that the informar 
tion is a good and suiBcient one. 

All which is ordered to be certified to the Superior Court of Law for 
Alleghany County. 



REX V. SEYMOUR. 

King's Bench. 1740. 

[Reported 7 Aforf. 382.] 

Setmouh, Boyce, Blatch, and DufHeld attended at the king's bench 
in order to receive judgment, upon their being found guilty upon several 
informations.^ 

Chapple, the junior Judge, having attended Baron Carter, who tried 
the informations, reported to the Court that there were three several 
informations, one against Seymour, and Bo5'ce, a justice of peace ; 
another against the same Seymour, and Blatch, a justice of the peace ; 
and a third against the said Seymour, and Duffleld, a justice of the 
peace. 

1 Ace. Rex V. Chalk, Comb. 396 ; Anon., 6 Mod. 96 ; Reg. v. Buck, 6 Mod. 306 ; 
Tyner v. U. S., 23 App. D. C. 324, 362 ; People v. Coon, 16 Weud. (N. Y.) 277; Com. 
V. Brown, 23 Pa. Super. Ct. 470. ' ' However reprehensible it may be for a member of the 
legislature to keep ' open house ' for the entertainment of members, where they may 
partake of ' light refreshments, wine, beer, liquors, and cigars,' it falls short of estab- 
lishing a case of bribery. A ' bribe ' is defined to be a ' price, reward, gift, or favor 
bestowed or promised with a view to pervert the judgment or corrupt the conduct of a I 
judge, witness, or other person.' 'To bribe' means 'to give a- bribe to a person to 
prevent his judgment or corrupt his actions by some gift or promise.' To give enter- 
tainments for the purpose of unduly influencing legislation is wholly bad in morals, but 
does not constitute the crime of bribery." Grant, J., in Randall v. Evening News 
Ass'n, 97 Mich. 136, 56 N. W. 361. 



50 REX V. SEYMOUR. [CHAP 11. 

The otfence stated in the information, was matter of extortio n used 
by Seymour and the three justices against several foreigners who were 
settled in the corporation of Colchester, and who had applied to those 
three justices for licences to sell ale. 

The proceedings were thus : Seymonr and these three justices met in 
order to grant licences to sell ale ; when the burgesses applied they had 
their licences upon the common and ordinary terras, but when any for- 
eigner came for a licence, the constables who were stationed to guard the 
outward door .suffered none but the foreigner who applied for a licence 
to enter into the first room, where Seymour was ; and the general ques- 
tion Seymour put to th"e foreigner was, Whether he was willing to pay 
ten shillingsforJiisJicence ? If he refused he was dismissea, but inre- 
agr'iitid Lo paj' it to Seymour his sureties were called, and he was ad- 
mitted to go along with them into the room to the three justices, where 
his recognizance was taken and his licence granted. These informa- 
tions were tried by three special juries of gentlemen ; the facts charged 
were very fullj' proved upon the trial ; and there were above one 
hundred licences granted at the rate of ten shillings apiece. 

When Chappie, Justice, had certified as above, Serjeant Price and 
Mr. Bootle moved, in mitigation of the fines that should be set by the 
Court, upon several affidavits to shew quo animo the fact was done, as 
that such fines had been taken for twenty-flve years past; that this 
whole procedure was bj- the consent and direction of all the other ruling 
members of the corporation ; and that the money was applied to public 
uses, as for repairing bridges, streets, etc. 

The Court suffered the affidavits to be read, though it was opposed 
bj' the counsel on the other side. 

The Court. This crime appears upon the informations, and the 
affidavits for mitigation, to be of a very high nature ; for here are three 
justices, who are intrusted bj' the act of Parliament of the 5. & 6. Edw. 
6, c. 25, with a discretionarj' power to grant or refuse licences to the 
persons who appl}- for them, for each of which lliesiateteTiiiows olT^ 
^JuUiHg. It appears there were several applications made for licences, 
and that the justices granted them to anybody that was willing to pay 
ten shillings, without any regard to the person, whether he was quali- 
fied within the intent of the act or not. There was indeed a distinction 
made between townsmen and foreigners, the latter being obliged to pay 
much more than the former ; and there is no doubt but that by the by- 
laws of a corporation, in a great manj' instances, foreigners may be 
obliged to pay greater fees than the townsmen, as for the setting up of 
any trade, etc., but selling of ale is not a trade, or the subject matter of 
any by-law. Licencing public houses is a trust iTp^'-T^d in jnitir;y;ri of thw 
p eace by the legi slatureT^iiid tthi.ii tlicn L.iu mitU it' iif TT^ p..r<-i.Q/M.<iin.oi.Y 
" manner. neith ££_tE c"T!Trtrtom ii f i l ii i ii^ JXhJi Lwe uty-flv e years before , nor 
Jh9 t tpplin n tiftn nf thf mn n ev to pub licpurposfes. tlor the nonsent niMte 



SECT. II.] Taylor's case. 51 

other ruling members of the borough, can excuse these justices from 
tlie TitiiiMui ' tJS uf this Cuui ' t. • — * 



'riierefore tlie three justices must bo fined one hundred pounds each, 
and Seymour, who appears to be an ageiit or instrument to the justices, 
must be flnctJ one hundred and twenty pounds, viz., the sum of fort^' 
pounds on each information. 

The justices and Sej'mour had in court all the fine money, except 
one liundred pounds, which they offered to pay. 

But the Court said, Let them be gentlemen of ever so large a fortune, 
they must pa}' the whole flue in court or be committed, and checked one 
of the clerks in court for proposing to undertake for the payment of the 
one hundred pounds. The justices then paid the three hundred and 
twentj' pounds, and gave their note for the remaining one hundred 
pounds, which was accepted by the Court as payment.^ 



TAYLOE'S CASE. 

King's Bench. 1676. 

[Reported 1 Veiitris, 293.] 

An information exhibited against him in the crown oflSce, for utter- 
ing of divers blasphe mous expressions, horrible to hear ; viz.. That 
Jesus fffl'l"! \\"\" '\ h-i'lnrrl|i iTtmrfirriilctrr ; Religion was a cheat ; and 
that he neither feared God, the Devil, or man. 

Being upon his trial, he acknowledged the speaking of the words, 
except the word bastard ; and for the rest, he pretended to mean them 
in another sense than they ordinarily bear; viz., whoreraaster, i. e., 
that Christ was master of the whore of Bab)lon, and such kind of 
evasions for the rest. But all the words being proved by several wit- 
nesses, he was found guilty. 

And Hale said. That such kind of wicked, blasphemous words were 
not only "^^j^iflft tin ^"'^ finfl veligion, but a cjime aafiinst-the laws, 



te and government, and therefore punishable in this court (for to 
say religion is a cheat, is to dissolve all those obligations whereby the 
civil societies are preferred) ; and that Christianity is parcel of the laws 
of England, and therefore to reproach the Christian religion is to speak 
in subversion of the law. 

Wherefore they gave judgment upon him ; viz., To stand in the pillory \ 
in three several places, and to pay one thousand marks fine, and to find 
sureties for his good behavior during life.'' 

» See Rex ». Roberts, Comb. 193. 

» See State v. Williams, 4 Jre. (N. C.) 400. 



52 ANONYMOUS. [CHAP. IL 

HUGH MANNEY'S CASE. 
Star Chamber. 16. 
[Reported 12 Coke, 101.] 

In an information in the p:xchequer against Hugh Manney, Esq., 
the father, and Hugh Manney, the son, for intrusion and cutting of a 
great number of trees, in the county of Merioneth, the defendants 
plead not guilty; and Rowland ap Eliza, Esq., was produced as a 
witness for the King, and deposed upon his oath to the jurors, that 
Hugh the father and the son joined in sale of the said trees, and com- 
manded the vendees to cut them down, upon which the jurors found 
for the King with great damages ; and judgment upon this was given, 
and execution had of a great part. 

And Hugh Manne}^ the father, exhibited a bill in the Star Chamber, 
at the common law, against Rowland ap Eliza, and did assign the per- 
jury in this, that the said Hugh, the father, did never join in sale, nor 
command the vendees to cut the trees ; and the said Rowland ap 
Eliza was by all the lords in the Star Chamber^eQiisiet-of~Coffiipt-ai»d» 
wilful perjury- ; a nd it was resolved bv all, that it was by the comm on 
■hrw pnni !^q,bl'> Hftfnrp f^r^y stg^it.p; and although that the witness de~ 
pose for the King, yet he shalP^ther be punished than for another ; 
for the King is the head and fountain of justice and right ; and he, who 
perjures himself for the King, doth more offend than if it was in the 
case of a subject. 



ANONYMOUS. 

Assizes. 1326. 
[Reported Year Booh, 1 Ed. in. 16, pi. 7.] 

A MAN was indicted for felony, and put in the stocks ; another comes 
and enters the house (without breaking the house) and takes him out 
of the stocks and gets hira away ; and for this act he was arrested and 
brought before the justices and arraigned, etc., on indictment, and put 
himself, etc. ; and all this was found by an inquest. 

BouRCHiEE, C. J. C. P., said that he should rest in the grace of the 
King, and have perpetual prison or other punishment according to the 
King's will. But he should never be hanged, because the principal 
cause was not tried, nor had the prisoner been attainted ; for he might 
yet be acquitted. But it is otherwise whena,si»a:nr!s~c!0rrs4cted by the 
inquest on which he has put himself^o;>t^^confession, or by the record, 
or is otherwise adj udged ^ d^sktli; he i who_jie*eHes-McE~Tt^maD 
shall be hanged, etc. 



SECT. II.] ANONYMOUS. 53 

ANONYMOUS. 

King's Bench. 1686. 
[Reported 3 Mod. 97.] 

The defendant was indicted for barratry. The evidence against him 
was, That one G. was arrested at the suit of C. in an action of four 
thousand pounds, and was brought before a judge to give bail to the 
action ; and that the defendant, who was a barrister at law, was then 
present, an d did solicit thi " ff"it-, i^hun in truth at the same time C. 
was indebted to G. in two hundred pounds, and that he did not owe 
the said C. one farthing. 

Hekbert, C. J., was first of opinion that this might be maintenance, 
but that it was not barratry, unless it appeared that the defendant 
did know that C. had no cause of action after it was brought. If a 
man should be arrested for a trifling cause, or for no cause, this is no 
barratry, though it is a sign of a very ill Christian, it being against the 
express word of God. But a man may arrest another thinking that he 
has a just cause so to do, when in truth he has none, for he maj' be mis- 
taken, especially where there have been great dealings between the 
parties. But if the design was not to recover his own right, but only 
to ruin and oppress his neighbor, that is barratry. A man may lay 
out money in behalf of another in suits of law to recover a just right, 
and this may be done in respect of the poverty of the part}' ; but if 
he lend money tY^prnrn r»<-q 3,nH at;.- np ciiitn, thrn ^f i« " barrato r. 
* Now IL appearmg uporl the evidence that the defendant did entertain C. 
in his house, and brought several actions in his name where nothing 
was due, he is therefore guilts of that crime. But if an action be first 
j^Vft'^Jfl^^i ^^"ri l-hen pr osecute d by another. Tin Is m> T)H.rra?f!Trp-(;ha agt) 
there is no caus e f0|r action. 



ANONYMOUS 

King's Bench. 1688. 
[Reported Comberbach, 46.] 

A MAN was indicted for words spoken of a justice of peace [a bufHe- 
headed fellow], and an exception was taken that the words were not 
indictable. 

But per Curiam, Because it appears they were spoken of him in the 
execution of his olBce, the ttiaietmeiil, la guuJ. — And per [Wiight] " C. 
J., All actions fo r slandering a justice m his ' oflSce. may be turn ed into 
indictments.^ 



1 See Pocock'sUlse, 7 Mod. 310 ; Ex parte, The Mayor of Great Yarmouth, 
1 Cox, C. C. 122. 



54 EEGINA V. STEPHENSON. [cHAP, II. 

REGINA V. STEPHENSON, 

Crown Case Resekved. 1884. 

[Reported 13 Q. B. D. 331.] 

Case stated by Hawkins, J. The defendants were convicted upon 
an indictment charging them with having burnt the dead bodj' of an 
illegitimate infant child (named George Stephenson) to which the de- 
fendant Elizabeth Stephenson had recently given birth, with the intent 
to prevent the holding of an fnquest upon it. Counsel for tlje 
defendants objected to the sufficiency of the indictment.^ 

Grove, J. This conviction should be affirmed. There are two 
points raised by the case which has been stated ; first, is it indictable at 
common law to prevent the holding of a coroner's inquisition? and, 
secondly, is there enough before us to shew that the coroner had 
jurisdiction to hold the inquest? 

No case that has been referred to is absolutely in point, hnt. t.her^^ f^p 

iiiiiii| I Miliii li ii1i[ II ^.hat interference with statutor}^ duties a nd the 

prrvrnH n" ( iP iJ ii i i p ii r n rmmrr 's a nn.^i ' H.iiil!;i, i Jui l iu ^LM u ril,l " a t th ?' 

mmon la w. It is so in cases where statutory provisions are, as here, 
for the pulilic benefit, and especially where, as here, the matter is one 
concerning life and death. It is most important to the public that a 
coroner who on reasonable grounds intends to hold an inquest should 
not be prevented from so doing. The consequences would otherwise be 
most formidable, especially in the ease, I fear, of young children, for 
anj-one might prevent the holding of an inquest by the destruction of a 
dead bodj- with impunity, unless it could be proved that the death had 
been caused b}- violence. The onl3' evidenxse might be the examination 
of the bod3' itself. It might be that the only witness of the death was 
the murderer of the person found dead. To hold it no offence to pre- 
vent the administration of the law bj' preventing an inquest being hold, 
unless proof could be given of the cause of death, and that it was a 
violent cause, would set at nought the protection which there is at 
present to the public. The inquest is itself an inquiry into the cause 
, of death and the present indictment is framed upon this view, the con- 
trary view involves this proposition, that a coroner should be certain of 
the cause of death before he ventures to hold his inquest — this is cer- 
tainlj- not the law. It is certainlj' not what the statute governing this 
matter says. A coroner acts and ought to act upon information, not 
upon conclusive evidence. He inquires in cases of sudden death where 
such inquiry is desirable, tiracton Lib. iii. (De Corona) ch. v, and the 
Mirrour (The Mirrour of Justices, by Home, p. 38), shew that the statute 
is but an affirmation or confirmation of the common law. In the 
statute there is nothing about murder, the words are " suddenly dead" 

1 This short statement is substituted for that of the Reporter. — Ed. 



SECT. II.J EEGINA V. STEPHENSON. 55 

and the statute requires an examination of the dead body, the whole 
wording of the statute shews that it is the bodies that are to be ex- 
amined to find the cause of (ipath. A coroner's inquir}' would be 
useless if the coroner previously had by evidence to satisfy himself of 
the cause of death. In the present case it appears that there was at 
the least a reasonable suspicion, and indeed probabl}- more than a 
reasonable suspicion. The police informed the coroner, the informa- 
tion came from parties whose business it was to look into these matters, 
probably the coroner honestly believed the information thus given to 
him. iJ Lis clear to my mind that in hold ing-aH-wett icB t the «atoner 
ynnlfl only in such a case be doing his dii1x_jmd in thin duty the 
def endants obstruct nim~ P ' y iJun ' HptillOLi s IyTakin g_av£ay-tli & bodjy ind 

_j3Urni jg' ^^ fhc^W r»njpi-.r waa r.r» provont tho inqvmaf ; the CaSC in Mod. 

Rep. '(7 Mod. Rep. Case 15), seems to me in point. In the particular 
case the death was violent, that either means, appeared to have been a 
violent one, or it means, was discovered to have been a violent one 
when the inquest was held, but Lord Holt seems to indicate that the 
offence was the burying the child before the inquest so as to obstruct 
the inquest. If it is a crime to bury, a fortiori it is one to burn a body, 
because if j'ou bury, exhumation is possible, but if you burn, the body 
is destroyed and examination is no longer possible. However, here it 
is enough to say the coroner had a right to hold the inquest, and the 
prisoners were wrong in secretly and intentionally burning the body to 
obstruct him in his dut}' of holding such inquest. 

Stephen, J. I am of the same opinion. It is a misdemeanor to 
destroj' a bod}' upon which an inquisition is about to be properly held, 
with intent to prevent the holding of that inquest. This appears from 
many authorities and from the case in Mod. Rep. (7 Mod. Rep. Case 15). 
Is it true that it is a misdemeanor to interfere in a case where the 
coroner is of opinion that an inquest must be held, or is it necessary 
that the facts should be such that the inquest ought to be held ? This 
matter is not absolutely covered by authority. In one sense we do 
create new offences, that is to saj', that as a Court we can and do define 
the law from time to time and apply it to the varying circumstances 
which arise. In Reg. v. Price, 12 Q. B. D. 247, 248, I said, " it is a 
misdemeanor to prevent the holding of an inquest which ought to be 
held by disposing of the bodj-. It is essential to this offence that the 
inquest which it is proposed to hold is one which ought to be held. 
The coroner has not absolute right to hold inquests in every case in 
which he chooses to do so. It would be intolerable if he had power to 
intrude without adequate cause upon the privacy of a family in distress, 
and to interfere with their arrangements for a funeral. Nothing can 
justify such interference except a reasonable suspicion that there may 
have been something peculiar in the death, that it may have been due 
to other causes than common illness. In such eases the coroner not 
only may, but ought to hold an inquest, and to prevent him from doing 
80 by disposing of the body in any way — for an inquest must be held 



56 EEX V. TIBBITS. [CHAP. II. 

on the view of the body — is a misdemeanor." I say the same thing 
now, and I concur in my brother Grove's view, indeed any other view 
would in my opinion be Vrnr-I jf n rrr"" J^' i ' ^ ^ '' ^1" "" 
removes it liiiLiMti|i|il Tf''T 5oii p°<^'>'"''ig2;f''^ hpTg''pTHlfA- of an offence if 



Inquest intended- to bo hol d..was one thai, ibiahtlawT 



"*^s M5 been saldin the course of"^ ai'guuiunc, a man who obstructs 
an inquest in this way takes his chance of the inquest being one that it 
was right to hold. It is an obstruction of an officer of justice, it 
prevents the doing of that which the statute authorizes him to do.^ 



EEX V. TIBBITS. 

Court for Crown Cases Reserved. 1901. 
[Reported 1902, 1 K. B. 77.] 

Lord Alverston, C. J.^ This was a case reserved by Kennedy, J., 
at the last summer assizes at Bristol. Indictments were preferred 
against two defendants, Charles John Tibbits and Charles Windust. 
The indictments contained sixteen counts, upon each of which the de- 
fendants were found guilty. The charges contained in the indictment 
related to the publication of certain matters in a newspaper called the 
Weekly Dispatch, between January 13, 1901, and March 4, 1901 
(inclusive), and particularly to the issues of that newspaper dated 
respectively January 13 and February 3, 1901. Prior to the publica- 
tion of the first article, two persons, named Allport and Chappell, had 
been charged before the magistrate with offences under the Prevention 
of Cruelty to Children Act, 1894. Further charges of attempting to 
murder, and of conspiracy to murder a child named Arthur Bertie 
Allport, and of a conspiracy to commit the offence against s. 1 of the 
Prevention of Cruelty to Children Act, 1894, were preferred against 
them. On Februarj' 8 Allport and Chappell were committed to take 
their trial at the next Bristol Assizes, which had been fixed to com- 
mence on Februarj' 20. Their trial on the indictment for the attempt 
to murder commenced before Day, J., on March 1, and terminated on 
March 5. They were found guilty, and sentenced, Allport to fifteen 
years' penal servitude and Chappel to five j-ears' penal servitude. The 
publications in the Weekly Dispatch, which formed the subject of the 
present indictment against Tibbits and Windust, were statements relat- 
ing to the case of Allport and Chappell, contained in the issues of the 
Weekly Dispatch during the hearing of the case against Allport and 
Chappell before the magistrate, and before and during the trial of these 
persons at the assizes. It is unnecessary to refer in detail to any of 

1 Concurring opinions of Williams, Mathew, and Hawkins, J. J., are omitted. — Eu. 

2 The opinion only is given : it sufficiently states the case. Part of the opinion is 
omitted. — Ed. 



SECT. II.] KEX V. TIBBITS. 57 

the incriminated articles, of which those of January 13 and February 

3 were the most important. It is sufficient to say that the publication 
went far beyond any fair and bona fide report of the proceedings before 
the magistrate. They contained, couched in a florid and sensational 
form, a number of statements highly detrimental to Allport and Chap- 
pell. Many of these statements related to matters as to which evidence 
could not have been admissible against them in any event, and pur- 
ported to be the result of investigations made by the " Special Crime 
Investigator" of the newspaper. Under these circumstances it was 
contended on behalf of the prosecution that there was evidence upon 
which the jury might properly convict both the defendants on all the 
counts of the indictment. Upon the argument before us we had no 
doubt upon the main questions which had been discussed, but, having 
regard to the nature of the proceedings and the importance of the case, 
we thought it desirable that we should endeavour to lay down as clearly 
as possible the law applicable to such a case. Points were raised and 
argued on behalf of the defendant Windust as distinguished from the 
defendant Tibbits. It will be convenient to postpone the discussion of 
those points until we have dealt with the main questions of law raised 
on behalf of both prisoners. It was not attempted to be argued by 
Mr. Foote, who appeared as counsel for both defendants, that the pub- 
lication of such articles was lawful, and that the persons publishing 
such articles could not be punished. On the contrary, he contended 
that the publication of such articles was a contempt of Court, and could 
only properly be punished as such either by summary proceedings or 
indictment for contempt. He further urged that there was no evidence 
of any intention on the part of either of the defendants to pervert or 
interfere with the course of justice, and that any inference which might 
otherwise be drawn from the contents of the articles, that they were 
calculated to pervert or interfere with the course of justice, was nega- 
tived by the fact that the defendants Allport and Chappell had been 
subsequently convicted. That the publication of such articles consti- 
tuted a contempt of Court and could be punished as such, is well 
established. One of the sorts of contempt enumerated by Hardwicke, 
L. C, in the year 1742, 2 Atk. 471, is prejudicing mankind against per- 
sons before the case was heard, and he adds these important words : 
"There cannot be anything of greater consequence than to keep the 
realms of justice clear and pure that parties may proceed with safety 
both to themselves and their characters." The case of Eex v. Jolliffe, 

4 T. R. 285, shews that a criminal information lay for distributing in the 
assize town, before the trial at Nisi Prius, handbills reflecting on the con- 
duct of a prosecutor, and, in the course of his judgment in that case, Lord 
Kenyon made the following very relevant observations, 4 T. R. at p. 298 : 
" Now it is impossible for any man to doubt whether or not the publica- 
tion of these papers be an offence. Even the charge on the prosecutor 
would of itself warrant us to grant the information ; but that is a minor 
offence, when compared with that of publishing the papers in question 



68 EEX V. TIBBITS. [CHAP. IL 

during the pendency of the cause at the assizes, and in the hour of trial. 
Bis the pride of t he constitution of thisjJOuntvjJhaLalLcauses should 
be* d ecided "Byjiirorsj "who are chagen^in a manner whichexcttni«s all 
"iJOMSlJ -l- IJi iilMll , ml uuIl,. i.it^ ..Ua^jijiv baagfcjganif^ l^n ^g^eaant 
any possibilityoftheirJifiJag-tainpered'wiS. S at, if an individuaT can 
bleak dow5 ^:nv~of~ those safeguards which the ^nr°*''''"'''"" '■'"= in 
Mmv and ijo (iauUousl.y erect ed, by poisoning the mindsj oL-theJury.at 
■ a t . imp toI i hmIj ^ ' h. i' h (JHllu rl np"n t" HpniHp , he will s t ab the adminis- 
• tration of Tusti cein its most vital pa rts. And, therefore, I cannot for- 
"bear saying, tnat, if the publication be brought home to the defendant, 
he has been guilty of a crime of the greatest enormity." Again, in the 
case of Rex v. Fisher, 2 Camp. 563, the printer, publisher, and editor, 
were convicted for publishing a scandalous, defamatorj', and malicious 
libel, intending to injure one Richard Stephenson, charged with assault, 
and deprive him of the benefit of an impartial trial, " and to injure and 
prejudice him in the minds of the liege subjects of our lord the King 
and to cause it to be believed that he was guilty of the said assault and 
thereby to prevent the due administra,tion of justice and to deprive the 
said Richard Stephenson of the benefit of an impartial trial." It was 
urged on behalf of the defendants that this was an indictment for libel, 
and that, therefore, it was no authority for the indictment in the present 
case. But, if the judgment of Lord Ellenborough is examined, it will 
be noted that the main ground of the judgment is that the publication 
would tend to pervert the public mind and disturb the course of justice 
and therefore be illegal, and we cannot doubt that, if the attempt so to 
do be made, or means taken, the natural effect of which would be to 
create a wide-spread prejudice against persons about to take their trial, 
an offence has been committed, whatever the means adopted, provided 
there be not some legal justification for the course pursued. The case 
of Rex V. Williams, 2 L. J. (K.B.) (O.S.) 30, is another distinct autho- 
rity for the same view, in which it was laid down that any attempt 
whatever to publicly prejudge a criminal case, whether bj' a detail of the 
evidence or by a comment, or by a theatrical exhibition, is an offence 
against public justice and a serious misdemeanour. The publication of 
proceedings publicly held in a Court of Justice, if fair and accurate, has 
now the protection of the Law of Libel Amendment Act, 1888 (51 & 52 
Vict. c. 64), s. 3. The law as laid down in the older cases to which 
we have referred was summarised by Blackburn, J., in Skipworth's Case, 
L. R. 9 Q. B. 230, at p. 232, and with reference to the objection that 
the more proper proceeding should be by proceedings for contempt of 
Court, we would refer to the judgment of the Court in Reg. v. Gray, 
[1900] 2 Q. B. 36, from which it clearly appears that in many cases it 
is preferable to proceed by information or indictment rather than by 
motion for contempt. We have no doubt whatever that the publication 
of the articles in this case, at the time when, and under the circum- 
stances in which they were published, constitutes a criminal offence by 
whomsoever they were published. We think that the facts, which bring 



■SECT. II.] EEX V. TIBBITS. 59 

the incriminated articles within the category of misdemeanour, abun- 
•dantly appear upon the face of each count, and that, under those circum- 
■stances, it is perfectly immaterial whether the articles be described and 
oharged as libels or contempts or not. With reference to the argu- 
ment, which was strongly urged, that there was no evidence of any 
intention to pervert the course of justice, we are clearl}- of opinion, for 
the reasons given in the authorities to which we have referred, that this 
is one of the cases in which the intent may properly be inferred from 
the articles themselves and the circumstances under which they were 
published. It would, indeed, be far-fetched to infer that the articles 
would in fact have any effect upon the mind of either magistrate or 
judge, but the essence of the offence is conduct calculated to produce, 
so to speak, an atmosphere of prejudice in the midst of which the pro- 
ceedings must go on. Publications of that character have been pun- 
ished over and over again as contempts of Court, where the legal 
proceedings pending did not involve trial by jurj-, and where no one 
■would imagine that the mind of the magistrates or judges charged with 
the case would or could be induced thereby to swerve from the straight 
course. The offence is much worse where trial by jury is about to take 
place, but it certainly is not confined to such cases. We further think 
th"at,~ifthe articles are in the opinion of the jury calculated to interfere 
with the course of justice or p^iTPftThe minds of the ma^strate or of 
the jurors, the persons publishing are criminallj' responsible : see Reg. 
V Grant, 7 St. Tr. (N.S.) 507. We are also of opinion that the fact 
that AUport and Chappell, the persons referred to, were subsequently 
convicted can have no weight in the decision of the question now before 
us. To give effect to such a consideration would involve the conse- 
quence that the fact of a conviction, though resulting, either wholly or 
in part, from the influence upon the minds of the jurors at the trial of 
such articles as these, justifies their publication. This is an argument 
which we need scarcely say reduces the position almost to an absurditv, 
and, indeed, its chief foundation would appear to be a confusion 
between the, course of justice and the result arrived at. A person 
accused of. crime in this country can properly be convicted in a Court 
of Justice only upon evidence which is legally admissible and which is 
adduced at his trial in legal form and shape. Though the accused be 
really guilty of the offence charged against him, the due course of law 
and justice is nevertheless perverted and obstructed if those who have 
to try him are induced to approach the question of his guilt or inno- 
cence with minds into which prejudice has been instilled by published 
assertions of his guilt or imputations against his life and character to 
which the laws of the land refuse admissibility as evidence.' 

We have now only to consider the special points which were taken 
on behalf of the defendant Windust. . . . 

Conviction Affiirmed. 



60 STATE V. HOLT. [CHAP. II 

■ STATE V. HOLT. 
Supreme Judicial Court of Maine. 1892. 
[Reported 84 Maine, 509.] 

Walton, J. A wilful and corrupt attempt to prevent the attend- 
ance of a witness before any lawful tribunal organized for the adminis- 
tration of justice is an indictable offence at common law. The essence 
of the offence consists in a wilful and corrupt attempt to interfere with 
and obstruct the administration of justice. And when the act and the 
motive are first directly averred, and then clearly proved, punishment 
should follow. 

In this case the indictment alleges that the defendant, " well know- 
ing that one Fred N. Treat had been summoned in due form of law to 
appear before the Supreme Judicial Court holden at Belfast within and 
for the county of Waldo, on the thirtieth day of April aforesaid, then 
and there to give evidence in said court in behalf of the State, and 
contriving and intending to obstruct the due course of justice, did then 
and there unlaw fully and corruptly prevent, and illi iiijil JiH fin i mi 
the saidTi;g>4iiiifrtrm apjJUiLlTJ^ tit>BM«U«Q^rt to give evidence as afore- 
said "Bythen and there soliciting, enticing, and persuading tlie said 
Treat to become intoxicated, and by then and there removing and 
abducting him, the said Treat, whereby the said Treat did not appear 
at said court and give evidence,'' etc. 

It is objected that this indictment is not sufficient, because it does 
not aver that the witness had been summoned, or that a summons had 
been issued, or that there was a cause pending requiring the attendance 
of the witness. 

We do not think that either of these objections can be sustained. 

In State v. Keyes, 8 Vt. 57 (30 Am. Dec. 450), in a well-considered 
opinion by Mr. Justice Redfleld, the court held that it had always. 
beenanjDdiglabl£ J>ffe"cej L! f"""""" law to attempt to^DrgVEHTt he" 
^t fentlance of a wifcness before a court of justic e, although_no_auligffina 
fer the witne s s , . had, . b een— Served or issued : — It wilPnotdofor a 
illUliiyuL, sdid the cOUiL, tu adilntthat wilnesses may be secreted or 
bribed, or intimidated, and the guilty parties not be liable unless a 
subpoena has been served upon the witnesses. The doing of any act, 
continued the court, tending to obstruct the due course of p°ublic justice, 
has always been held to be an indictable offence at common law ; and 
bribing, intimidating, and persuading witnesses, to prevent them from 
testifying, or to prevent them from attending court, has been among 
the most common and the most corrupt of this class of offences ; and 
whether the witness has been served with a subpoena, or is about to be 
served with one, or is about to attend in obedience to a voluntary 
promise, is not material ; for any attempt, in either case, to prevent hia 



SECT. II.]_ STATE V. CAKVEE. 61 

attendance, is equally corrupt, equally criminal, and equally deserving 
of punishment. 

In Com. V. Reynolds, 14 Gray, 87, the court held it to be an in- 
dictable offence at common law to dissuade, hinder, or prevent a witness 
from attending before a court of justice ; and that an indictment for 
such an offence need not allege in whose behalf the witness had been 
summoned, nor that his testimonj' was material. The offence, said 
Mr. Justice Metcalf, is the obstruction of the due course of justice ; 
and the obstruction of the due course of justice means not only the 
due conviction and punishment, or the due acquittal and discharge, 
of an accused party, as justice may require ; but it also means the due 
course of the proceedings in the administration of justice ; that, by 
obstructing these proceedings, public justice is obstructed. 

Intentionally and designedly to get a witness drunk, for the express 
purpose of preventing his attendance before the grand jury, or in open 
court, is such an interference with the proceedings in the administration 
of justice as will constitute an indictable offence, and one for which the 
guilty party ought to be promptly and severely punished. And it is 
important that it should be understood that the suppression of evidence 
by such, or by any similarly wicked and corrupt means, cannot be 
practiced with impunity. 

Exceptions overruled. Indictment adjudged sufficient. 



STATE V. CARVER. 

SuTPEEME Court op New Hampshire. 1898. 
[Reported 69 N. H. 216.] 

Indictment charging that one Fernald had sold one quart of spirituous 

liquor contrary to the statute, and that the defendant corruptly and 

without authority made composition with Fernald and took from him 

thirtj' dollars for forbearing to prosecute the supposed offence. The 

defendant moved to quash the indictment. He also excepted to a 

ruling of the court at the trial, which is discussed in the opinion.-' 

Blodgett, J. Wj^atever diversity of opinion there may justl y be as 

I^Mji^-inli^y "f <^'T»'r;^j||-^2L!^^j;;^^*"^''i fitatp. it oa^n Q^ , b a-€tqtr6tedtha .t 

— Iheir violation is a grave misdemeanor agamst public justice, nor tha t 

— its compromise witn the onendui by u puviSXeTndividual is both 

-^ppriil(;l.>iw Hhil illn pH;^ , ■ ""■ 



Fisdemeanors are either mala in se, or penal at common law, and 
such as are mala prohibita, or penal by statute. Those m,ala in se 
are such as mischievously affect the person or property of another, or 
outrage decency, disturb the peace, injure public morals, or are breaches 
of public duty." 4 Am. & Eng. Enc. Law 654. 

There being in this state no statute prohibiting the composition of 

1 This short statement is substituted for that of the Reporter. — Ed. 



62 STATE V. CARVER. [CHAP. 11.^ 

misdemeanors, and the body of the common law and the English stat- 
utes in amendment of it, so far as they were applicable to our institutions 
and the circumstances of the country, having been in force here upon, 
the organization of the provincial government and continued in force 
by the constitution, so far as they are not repugnant to that instrument, 
until altered or repealed by the legislature (State v. Rollins, 8 N. H. 
560; State v. Albee, 61 N. H. 427), the first inquiry is whether such 
composition was an indictable offence at common law. 

While decisions upon this precise point are lacking, the language of 

/the books is general that the taking of money or other reward to sup- 

I press a criminal prosecution, or the evidence necessary to support it,. 

[was an indictable offence at common law, and although the English 

leases may not all be reconcilable with this view, it-wenld seem Ihnt 

\when tlifij aflence com pounded w as one again st pnhlic jnat ice and dan - 

je^0ua^4»^Iaaei ety it was I ndictab le, whlletbose having largely the- 

nature of private Injuries, or ot' Very low grade, were not indictable. 

See Johnson v. Ogilby, 3 P. Wms. 277; Fallowes v. Taylor, 7 T. E> 

475 ; Collins v. Blantern, 2 Wils. 341, 348, 349 ; Rex v. Stone, 4 C. & 

P. 379; Keir v. Leeman, 6 Q. B. 308, 316-322, — S. C, on error. 

9 Q. B. 371, 395 ; Rex v. Crisp, 1 B. & Aid. 282; Edgcombe v. Eodd,. 

5 East, 294, 303 ; Rex v. Southerton, 6 East, 126 ; Beeley v. Wingfield,. 

ll East, 46. 48; Baker v. Townsend, 7 Taun. 422, 426 ; Bushel v. 

Barrett, Ry. & M. 434 ; Rex v. Lawley, 2 Stra. 904 ; Steph. C. R. L. 67 ; 

3 Wat. Arch. Crim. Pr. & PI. 623-10, 623-11 ; 1 Russ. Cr. 136 ; 1 Ch. 

Cr. L. (3d Am. ed.) 4 ; 1 Bish. Cr. L. (7th ed.), ss. 710, 711; Dest. Cr. 

L. s. 10 6 ; 4 Wend. Bl. Com. 136, and note 18. 

In this restricted sense we are of opinion that the taking of money^ 
or other reward, or promise of reward, to forbear or stifle a crim- 
inal prosecution for a misdemeanor, was an indictable offence by the 
common law, the same as it unquestionably was for a felony (Part- 
ridge V. Hood, 129 Mass. 403, 405, 406, 407), and that it has always^ 
been so understood and received here, as well as in other jurisdictions. 
Plumer v. Smith, 5 N. H. 553, 554 ; Hinds v. Chamberlin, 6 N. H. 
229 ; Severance v. Kimball, 8 N. H. 386, 387 ; Hinesburg v. Sumner,. 
9 Vt. 23, 26 ; Badger" -y. Williams, 1 D. Chip. 137, 138, 139 ; State v. 
Keyes, 8 Vt. 57, 65-67 ; State v. Carpenter, 20 Vt. 9 ; Commonwealth 
V. Pease, 16 Mass. 91 ; Jones v. Rice, 18 Pick. 440 ; Partridge v. Hood,. 
supra ; State v. Dowd, 7 Conn. 384, 386. 

Certainly, there is no ground to contend that the offence is any 
less pernicious and reprehensible under our form of government than 
under that of the. mother country, or that, as a part of the body of 
the common law, it was inapplicable to our institutions and circum- 
stances at the time of the organization of our provincial government, 
or in any manner repugnant to the constitution or to our present 
institutions and circumstances. Indeed, the absence of any statutfr 
upon the subject of the composition of misdemeanors suflSciently shows 
the general understanding in this state, for it cannot reasonably b& 



SECT. II.] STATE V. CAEVEE. 63 

supposed that so infamous an offence would have been permitted to go 
unpunished for want of statutory enactment, unless it has been 
understood generall}' that under our common law none was necessarj-. 

But not only did the defendant, in consideration of a reward, com- 
pound a public misdemeanor, and suppress and destroj' the material 
evidence necessary to support it, he also f^f-ffgnrjo r] f.hp rpvprn^p hy 
depriving the public of that portion of the pecuniary penalty to which 
they are entitled for a violation of the liquor laws ; ai^d this of its elf 
is a sufficien.t i TTv n nnrl nn T l' hich to sustain a n '"'^'"'■"'""t nt' ""n'n"n 
tew^HSexlTSoutherton, 6East, 126; 1 Russ. Cr. 134. 

In view of these conclusions, it is unnecessary to examine the ques- 
tion argued hy counsel as to whether or not the case falls within the 
statute of 18 Eliz., c. 5 (made perpetual by 27 Eliz., c. 10, and amended 
as to punishment by 56 Geo. Ill, o. 138), by whicli it was enacted lliat 
if any person " by colour or pretence of process, or without process j 
upon colour or pretence of any matter of offence against any penal law, 
make any composition, or take any mone\', reward, or promise of re- 
ward," without tiie order or consent of some court, " he shall stand 
two hours in the pillory, be forever disabled to sue on an^- popular or 
penal statute, and shall forfeit ten pounds." 

The motion to quash the indictment because it describes the offence 
for Which composition was made as a " supposed offence," was prop- 
erly denied. "The bargain and acceptance of the reward makes the 
crime " (State v. Duhammel, 2 Harr. 532, 533) ; and in such a case, 
"the party may be convicted though no offence liable to a penalty lias 
been committed bj' the person from whom the rew^ard is taken." 
Reg. V. Best, 9 C. & P. 368,-38 Eng. C. L. 220; Rex v. Gotley, 
Russ & Ry. 84 ; People v. Buckland, 13 Wend. 502; 1 Russ. Cr. 133, 
134 ; 3 Arch. Crim. Pr. & PI. 623-11. 

The ruling that "if the defendant knew what he was doing and 
did what he intended to do, it was immaterial what his opinion was 
as to the legal effect of what he was doing, and it would be no 
defence that he did not know he was violating the law," was mani- 
festly correct. " A man's moral perceptions may be so perverted as to 
imagine an act to be right and legal which the law justh' pronounces 
fraudulent and corrupt ; but he is not therefore to escape from the 
consequences of it." Bump. Fr. Conv. (3d ed.) 25. "Ignoi'ance of a 
fact maj' sometimes be taken as evidence of a want of criminal intent, 
but not ignorance of the law " (Reynolds v. United States, 98 D. S. 
145)'; and "in no case can one enter a court of justice to which he 
has been summoned in either a civil or criminal proceeding, with the 
sole and naked defence that when he did the act complained of, he did 
not know of the existence of the law which he violated." 1 Bish. Cr. 
L. (7th ed.), s. 294. 

It is elementary, as well as indispensable to the orderl}'^ administra- 
tion of justice, that ever3' man is presumed to know the laws of the 
country in which he dwells, and also to intend the necessary and 



64 HEX V. BLAKE. [CHAP, II. 

legitimate consequences of wtiat he knowingly does. If there are 
cases in which the application of these presumptions might operate 
harshly, the admitted facts amply demonstrate that this case is not 
such an one. Exceptions overruled. 



REX V. BLAKE. 

King's Bench. 1765. 

[Reported 3 Burrow, 1731,] 

Mr. Dunning showed cause whj' an indictment should not be 
quashed. 

He called it an indictment for a fomble_eiitar ; and argued " that an 
indictment for a forcible entry mayHbe maintained at common law." 
He cited a case in Trin. 1753, 26, 27, G. 2. B. R. Rex v. Brown and 
Others ; and Rex v. Bathurst, Tr. 1755, 28 G. 2. S. P. 

But, N. B. This indictment at present in question was only for 
(vi et armis) breaking and entering a close ("not a dwelling-house) and 
unlawfully and unjustly expelling the prosecutors, and keeping them 
out of possession. 

Mr. Popham, on behalf of the defendants, objected " that this was 
an indictment for a mere trespass, for a civil injuiy ; not a public, but 
a private one ; a mere entry into his close, and keeping him out of it." 
The " force and arms " is applied only to the entry, not to the expel- 
ling or keeping out of possession ; they are only charged to be unlaw- 
fully and unjustly. This is no other force than the law implies. No 
actual breach of the peace is stated ; or any riot ; or unlawful assembly. 
And he cited the cases of Rex v- Gask, Rex v. Hide, and Rex v. Hide 
and Another (which, together with a note upon them, may be seen in 
the text and margin of page 1768). 

Rex V. Bathurst is the only case where the objection has not been 
held fatal ; and that was because it was a forcible entry into a dwelling- 
house. 

Rex V. Jopson et al. Tr. 24, 25 G. 2 B. R. was an unlawful assembly 
of a great number of people. (V. ante 3 Burr. 1702, in the margin.) 

Mr. Justice Wilmot. No doubt, an indictment will lie at common 
law for a forcible entry, though they are generally brought on the acts 
of parliament. On the acts of parliament, it is necessary to state the 
nature of the estate, because there must be restitution ; but they may 
be brought at common law. 

Here the words " force and arms " are not applied to the whole ; but 
if they were applied to the whole, yet it ought to be such an actual 
force as implies a breach of the peace, and makes an indictable offence. 
And this I take to be the rule, " That it ought to appear up6n the face 
of the indictment to be an indicta.ble offence." 

Here indeed are sixteen defendants. But the number of the defend- 
ants makes no difference, in itself; no riot, or. unlawful assembly, or 



SECT. II.j COMMONWEALTH V. GIBNEY. 65 

anything of that kind is charged. It ought to amount to an actual 
breach of the peace indictable, in order to support an indictment. For, 
otherwise, it is onlj' a matter of civil complaint. And this ought to 
appear upon the face of the indictment. 

Mr. Justice Yates concurred. Here is no force" or violence shown 
upon the face of tlie indictment, to make it appear to be an actual 
force indictable ; nor is any riot charged, or any unlawful assembly. 
Therefore the mere number makes no difference. 

Mr. Justice Aston concurred ; the true rule is, " That it ought to 
appear upon the face of the indictment to be an indictable offence." 

Per Cue. unanimously. 

Rule made absolute to quash this indictment.^ 



COMMONWEALTH v. GIBNEY. 

Supreme Judicial Court or Massachusetts. 1861. 

[Reported 2 AUen, 150.] 

Indictment, charging that the defendants, five in number, " together 
with divers others, to the number of twelve and more, to the jurors 
aforesaid unknown, being evil disposed and riotous persons, and dis- 
turbers of the peace qf said commonwealth, on the thirty-first day ot 
December in the year of our Lord one thousand eight hundred and 
sixty, at North Andover, in the county of Essex aforesaid, with force 
and artns, to wit, with clubs, staves, stones, and other dangerous and 
offensive weapons, a certain building there situate, called the Union 
Hall, the property of one Thomas E. Foy, in the night time, unlawfully, 
Tiotouslj', and routously did attack and beset, and did then and there 
unlawfully, riotously, routously, and outrageously make a great noise, 
disturbance, and affray near to and about the said building, and did 
unlawfully, riotouslj', and routously continue near to and about and in 
■the said building, making such noise, disturbance, and affray for a long 
space of time, to "wit, for the space of one hour, and the doors and 
windows of the said building did then and there unlawfully, riotously, 
and routously, with the dangerous and offensive weapons aforesaid, 
break, destroy, and demolish, to the great damage of the said Thomas 
E. Foy, to the great terror of divers good people of said commonwealth 
then and there lawfully being, against the peace, " etc. 

After a verdict of guilty in the superior court, Peter Gibney, one of 
the defendants, moved in arrest of judgment for reasons indicated in 
the opinion ; but the motion was overruled by Morton, J., and the 
defendant alleged exceptions. 

Dewbt, J. It was held as early as Regina v. Soley, 2 Salk. 594, 
that judgment should be arrested and the indictment held bad, "be- 

1 See Rex v. Storr, 3 Burr. 1698; Rex v. Wilson, 8 T. R. 357 ; Com. v. Shattuck, 
4 Cush. (Mass.) 141 ; Eilpatrick v. People, 5 Denio (N. T.) 277; Com. v. Edwardi 
I Ashm. (Fa.) 46. See State v. BuTioughs. 7 N. J. L. 436 Com. v. Powell, 8 Leigh 
(Va.) 719. 



66 COMMONWEALTH V. GIBNEY. [CHAP. II. 

cause it is not said that the defendants unlawfully assembled." The 
proposition thus stated seems to be held as correct in the later elemen- 
tary writers. To maintain an i ndictment for a riot^ His said in Archb. 
Crim. Pr. 589, tiatHE^^p i o bu culor muat p rpVB- : TnTl(r-8tS9«mbling ; 
2. Tfte- MrtectTnamelyT " that they so assembl ed together with intent 
to1exe^te_s ome enterprise of _a-pxi ¥ato naturti , "'"^ H|1"" i ni i i ii ^iHy to 
a ssist one another against any person who should oppose them in d oing 
gjL— ^'he intent i s proved in this, as in e very othere ase, by proving 

facts from which tfae7i lTyj ijay_ljj I Ij jii f Z The definition of a 

riot includes the statement~^f three persons or more assembling to- 
gether." 1 Russell on Crimes, 266. In 2 Deacon's Crim. Law, 1113, 
a riot is said to be " a tumultuous meeting of three or more persons, 
who actuallj- do an unlawful act of violence, either with or without a 
common cause or quarrel ; " " or even do a lawful act, as removing a- 
nuisance in a violent and tumultuous manner.'' 

The distinction in criminal treatises, in the definitions of riots, routs, 
and unlawful assemblies, assumes that there must be an assembling 
together, and an unlawful assembly ; although the assembly may not 
have been unlawful on the first coming together of the parties, but 
becomes so by their engaging in a common cause, to be accomplished 
with violence and in a tumultuous manner. And the precedents for 
indictments for a riot, with the exception of a single one in Davis's 
Precedents, the others in that book being different, all allege an un- 
lawful assembling together. This seems to be a necessary form in a 
proper indictment for a riot, although the proof of such unlawful as- 
sembly may be made by showing three or more persons acting in con- 
cert in a riotous manner, as to using violence, exciting fear, etc. 

Th° prpRfMit indiftiffvpfili vhiiii^fIi liln^i'^fuicbo sustained as a-good-Jn- 
dictmenTfor a riot, for want of proper_allegationa pf the assembling 
tdg cthci' of three u i u nii ' ti 'Tiei^n s. 

It cauUoL be sustained as an indictment for forcible entry, the alle- 
gations not being adapted to a charge of that offence. 

It cannot be sustained as an indictment for malicious mischief, for 
the like reason. Nor can it be maintained as a charge at common law 
for a disturbance of the peace. A man cannot be indicted for a mere 
trespass. No indictment lies at common law for mere trespass com- 
mitted to land or goods, unless there be a riot or forcible entry. The 
King V. Wilson, 8 T. R. 357. The words "violently and routously,'' 
here used, have no particular pertinency, except as terms appropriate 
to a formal indictment for riot, charging also an unlawful assembly. 
In the present indictment there is nothing more alleged than a tres- 
pass, with violence. There is no allegation that any person was in the 
iDuilding, but only of a breaking of doors and windows of a building, 
which might be a mere trespass. 

If the case was a proper one for an indictment for a riot, as it prob- 
ably was, that offence not being properly charged, the indictment is 
bad, and the motion in arrest of judgment must prevail. 

Judgment arrested. 



SECT, n.] KESPUBLICA V. TEISCHEK. 67 

EESPUBLICA V. TEISCHER. 
Supreme Court of Pennsylvania. 1788. 

[Reported 1 Dallas, 335.] 

The defendant had been convicted in the county of Berks upon an 
indictment forjaaliciously, wilfully, and wickedlyJdlliBg-ftJyjrse ; and 
upon a motion m arrest ot judgrtient, it eameon to be argued whether 
the offence, so laid, was indictable. 

Sergeant, in support of the motion, contended that this was an in- 
jury of a private nature, amounting to nothing more than a trespass ; 
and that to bring the case within the general rule of indictments for 
the protection of society, it was essential that the injury should be 
stated to have been perpetrated secretly as well as maliciously, — which 
last he said was a word of mere form, and capable of an indefinite 
application to every kind of mischief. To show the leading distinction 
between trespasses for which there is a private remedy and crimes 
for which there is a public prosecution, he cited Hawk. PI. Cr. 210, 
lib. 2, c. 22, s. 4 ; and he contended that the principle of several 
cases, in which it was determined an indictment would not lie, applied 
to the case before the court. 2 Stra. 793 ; 1 Stra. 679. 

The Attorney- General observed, in reply, that though he had not 
been able to discover any instance of an indictment at common law 
for killing an animal, or, indeed, for any other species of malicious 
mischief, yet that the reason of this was probably the early interfer- 
ence of the statute law to punish offences of such enormity ; for that 
in all the precedents, as well ancient as modern, he had found the 
charge laid contra formam statuti, except in the case of an information 
for killing a dog, — upon which, however, he did not mean to rely. 
10 Mod. 337. 

He said that the law proceeded upon principle, and not merely upon 
precedent. In the ease of Wade, for embezzling the public money, no 
precedent was produced ; and one Henry Shallcross was lately con- 
demned in Montgomery County for maliciously burning a barn (not 
having hay or corn in it) , though there was certainly no statute for 
punishing an offence of that description in Pennsylvania. The prin- 
ciple, therefore, is that every act of a public ev il p-s-jimplp md ifTflinsfn 

good mrirolla^c j^p n flFnnnr inr l iotnhln Viy fho pfMT i mOn laW-,f and this 

prtrrctpIe'liSects the killing of a horse, as much, at least, as the burn- 
ing of an empty barn. 

But he contended that there were many private wrongs which were 
punishable by public prosecution ; and that with respect to these a 
distinction had been accurately established in 2 Burr. 1129, where it is 
said that -'in such impositions .or deceits where common prudence 
may guard persons against the suffering from them, the offence is not 
indictable, but the party is left to his civil remedy for the redress of 
the injury that has been done him ; but where false weights and meas- 
ures are used, or false tokens produced, or such methods taken to 



68 KESPUBLICA V. TEISCHEK. [CHAP. II. 

cheat and deceive as people cannot by any ordinary care or prudence 
be guarded against, there it is an offence indictable." — Accordingly, 
in Crown Circ. Comp. 231; 1 Stra. 595; S. C. Crown Circ. Comp. 
24, are cases of private wrongs, and yet punished by indictment ; be- 
cause, as it is said in Burrow, common prudence could not have 
guarded the persons against the injury and inconveniency which they 
respectively sustained. The same reason must have prevailed in an 
indictment at Lancaster (the draft of which remains in the precedent 
book of the successive attorneys-general of this State) for poisoning 
bread, and giving it to some chickens ; and it applies in full force to 
the case before the court. 

Independent, however, of these authorities and principles, the jury 
have found the killing to be something more than a trespass ; and that 
it was done maliciously forms the gist of the indictment ; which must be 
proved by the prosecutor, and might have been controverted and 
denied by the defendant. Being therefore charged, and found by the 
verdict, it was more than form ; it was matter of substance. 

The opinion of the court was delivered, on the 15th of July, by the 
Chief Justice. 

M'Kean, C. J. The defendant was indicted for " maliciously, wil« 
fully, and wickedly killing a horse ; " and being convicted by the jury, 
it has been urged, in arrest of judgment, that this offence was not of 
an indictable nature. 

It is true that on the examination of the cases we have not found 
the line accurately drawn ; but it seen ia-tn br iprrrrd that wUalevbr 
-lummntiR tft a pii^ilif; wrnn g may be made tb ° °'i'7jp''<^ "f q,n j>i;ji^^<^"<^ 
"fhe poisoning of chickens, cheating with false dice, fraudulently teaP" 
ing a promissory note, and many other offences of a similar description, 
have heretofore been indicted in Pennsylvania ; and 12 Mod. 337, 
furnishes the case of an indictment for killing a dog, — an animal of 
far less value than a horse. Breaking windows by throwing stones at 
them, though a sufficient number of persons were not engaged to ren- 
der it a riot, and the embezzlement of public moneys, have, likewise, 
in this State been deemed public wrongs, for which the private sufferer 
was not alone entitled to redress ; and unless, indeed, an indictment 
would lie, there are some very heinous offences which might be perpe- 
trated with absolute impunity ; since the rules of evidence, in a civil 
suit, exclude the testimony of the party injured, though the nature of 
the transaction generally makes it impossible to produce any other 
proof. 

For these reasons, therefore, and for many others which it is un- 
necessary to recapitulate, as we entertain no doubt upon the subject, 
we think, the indictment will lie. 

Let judgment be entered for the Commonwealth.* 

1 See U. S. V. Gideon 1 Minn. 292; State v. Beekman, 3 Dutch. (N. J.) 124; 
lioomia o. Edgerton, 19 Wend. (N. Y.) 419; State ■». Phipps, 10 Ire. (N.,C.) 17. 



SECT. II.] COMMONWEALTH V. TAYLOR. 69 

COMMONWEALTH v. TAYLOK. 

Supreme Court op Pennsylvania. 1812. 

[Reported 5 Binney 277.] 

The defendant was indicted in the Quarter Sessions of Franklin 
county for "that he, on the 24th of August 1809, about the hour of ten 
of the cloclr in the night of the same da}', with force and arms b.1 
Lurgan township, in the countj- aforesaid, the dwelling house of James 
Strain there situate, unlawfully, maliciouslj', and secretly did break 
and enter, with intent to disturb tiie peace of the commonwealth ; and ' 
so being in the said dwelling house, unlawfuU}', vehemently, and tur- 
bulently did make a great noise, in disturbance of the peace of the 
commonwealth and greatly misbehave himself, in the said dwelling 
house ; and Elizabeth Strain, the wife of the said James, greatly did 
frighten and alarm, by means of which said fright and alarm she the 
said Elizabeth, being then and there pregnant, did on the 7th daj' of 
September in the year aforesaid at the county aforesaid miscarry, and 
other wrongs to the said Elizabeth then and there did, to the evil 
example, &c." ' 

The jurj' having found the defendant guilty, the Quarter Sessions 
arrested the judgment upon the ground that the offence charged w;is 
not indictable; and the record was brought up to this Court by writ 
of error. 

TiLGHMAM, C. J. It is contended on the part of James Taylor, that 
the matter charged in the indictment is no more than a private trespass, 
and not an offence subject to a criminal prosecution. On- the other 
hand it has been urged for the commonwealth that the offence is indict- 
able; 1st, as a forcible entry, — 2d, as a malicious mischief 

1. I incline to the opinion that tlie matter charged in the indictment 
does not constitute a forcible entry, although no doubt a forcible entrj- 
is indictable at common law. There nTngf^n pf.trmi fr»]-f»p jv^mnb-o an 
indictable off ence. The bare aflegation of its being done wT5!~f5n:e 
and jii my, docs not seem to be sufficient ; for everj- trespass is said to 
be with force and arms. In the King v. Storr, 3 Burr. 1698, the indict- 
ment was for unlawfully entering his yard and digging the ground and 
erecting a shed, and unlawfully and with force and arms putting out 
and expelling one Mr. Sweet the owner from the possession, and keep- 
ing him out of the possession. This indictment was quashed. The 
King V. Bake and fifteen others, 3 Burr. 1731, was an indictment for 
breaking and entering with force and arms a close (not a dwelling 
house), and unlawfully' and unjustly expelling the prosecutors, and 
keeping them out of possession. This also was quashed, and the rule 
laid down by all the court was that there must be force or violence 
shewn upon the face of the indictment, or some riot or unlawful assem- 
bly. It appears indeed that in the King v. Bathurst, cited and re- 



/ 



70 



COMMOKWEALTH V. TAYLOR. [CHAP. II. 



marked by the judges in the King ,'. Storr, the court laid considerable 
stress on the circumstance of entering a dwelling house. We have no 

'report of that case, but Lord Mansfield's observation on it (3 Burr. 
1701) is that it does not seem to him to lay down any such rule as 
that force and arms alone implies such force as will of itself support an 
indictment. " Tliere," says he, "the fact itself naturally implied force; 
it was turning and keeping the man out of his dwelling house, and 
ilone by three people." In the case before us, there is the less reason 
to suppose actual force, as the entry is charged to have been made se- 
cretly. This might have been done through a door which was open, 
and vet in point of law, it was a breaking and entry with force and arms, 
which is the allegation in everj' action of trespass. 

2. But supposing the indictment not to be good for a forcible entry, 
may it not be supported on other grounds? In the case of the Com- 
monwealth V. Teischer, 1 Dall. 335, judgment was given against the de- 
fendant for "maliciously, wilfully and wickedly killing a horse." 
These are the words of the indictment, and it seems to have been con- 
ceded by Mr. Sergeant, the counsel for the defendant, that if it had 
been laid to be done secretly, the indictment would have been good. 
Here tlie entering of the house is laid to be done " secretly, maliciously, 
and with an attempt to disturb the peace of the commonwealth. I 
do not find any precise line by which indictments for malicious mischief 
are separated from actions of trespass. But whether the malice, the 
mischief, or the evil example is considered, the case before us seems 
full as strong as Teischer's case. There is another principle, however, 
upon which it appears to me that the indictment ma}' be supported. 
It is not necessary that there should be actual force or violence to con- 
stitute an indictable offence. Acts injurious to private persons, which 
^tend to excite violent resentment, and thus produce fighting and dis- 
turbance of the peace of societj', are themselves indictable. To send a 
challenge to fight a duel is indictable, because it tends directly towards 
a breach of the peace. Libels fall within the same reason. A libel 
even of a deceased person is an offence against the public, because it 
may stir up the passions of the living and produce acts of revenge. 
Now what could be more likely to produce violent passion and a dis- 
turbance of the peace of society, than the conduct of the defendant? 
He enters secretly after night into a private dwelling house, with an 
intent to disturb the family, and after entering makes such a noise as 
to terrify the mistress of the house to such a degree as to cause a mis- 
carriage. Was not tljis pr|n ugh to pro duce ""mr nft nf rlr?fip"rnt" y12~ 
lence on the part of the master or irrnnlt'i n\ thr^^rmilj- ? It is objected 

«-1,lHlL Lhu kind ul iiuiisU is not described ; no matter, it is said to have 
been made vehemently and turbulently, and its effects on the pregnant 
woman are described. In the case of the King v. Hood (Sayers' Eep. 
in K. B. 161) the court refused to quash an indictment for disturbing 
a family by violently knocking at the front door of the house for the 
space of two hours. It is impossible to find precedents for all offences. 



SECT. II.] COMMONWEALTH V. TAYLOR. 71 

The malicious ingenuity of mankind is constantly producing new inven- 
tions in the art of disturbing their neighbours. To this invention must 
be opposed general principles, calculated to meet and punish them. I 
am of opinion that the conduct of the defendant falls within the range 
of established principles, and that the judgment of the Court below 
should be reversed. 

Brackenridge, J. It cannot be inferred, vi termini, that the word 
" break " means more than a clausumfregit, or a breaking of the close in 
contemplation of law, even though a dwelling house was the close 
broken; because the trespass might be by walking into it, the door 
open. But the court might refuse to quasli, because it might appear 
on the evidence that the breaking amounted to more than a clausum 

fregit in trespass. ^iit. t^ing tVlp nntry tn qmnnnt. f£) [^r<t.}iipg nngj-P 

than a w nJlTinjT iuj IJii TTiTiTrii|irii, fiv\y init thr mntirr nf lirrrnt-i y ^n d 
the us e he made of it, constitute a miad pmRa.tjf>r? What ishe~alleged 
to nave done, after entering the house ? " Wilfully, vehemently, and 
turhulently did make a great noise." How is a noise occasioned that is 
perceptible to the ear? It must be by an impulse of the air on the 
organs of hearing. And what is it, whether it is by the medium of air, 
or water, or earth, that an assault and battery is committed ? The im- 
pulse of the air may give a great shock. Birds have fallen from the 
atmosphere struck by a mighty voice. This happened at the celebra- 
tion of the Isthmian games, as related by Plutarch in his life of Paulus 
Emilius. Are we bound to consider the noise gentle? Are we not at 
liberty to infer the mightiest effort of the human lungs? But the 
power of imagination increases the effect. Armies have been put to 
rout by a shout. The king of Prussia in the seven years' war won a 
battle by the sound of artillery without ball. Individuals have been 
thrown into convulsions by a sudden fright from a shout. The infant 
in the womb of a pregnant woman has been impressed with a physical 
effect upon the body, and even upon the mind, by a fright. Mary, 
queen of Scots, from the assassination of Rizzio, communicated to her 
offspring the impression of fear at the sight of a drawn sword. Peter 
the Great of Russia had a dread of embarking on water from the same 
• cause. Shall we wonder then that death is occasioned to the embryo, 
in the womb of a pregnant woman, by a sudden fright? If in this 
indictment it had been stated that the woman was pregnant with a liv- 
ing child, it might have been homicide. But she is stated to have mis- 
carried, which is the parting with a child in the course of gestation. 
Will not the act of the individual maliciously occasioning this, consti- 
tute a misdemeanor? A sudden fright even by an entry without noise, 
presenting the appearance of a spectre, might occasion this, even though 
in playful frolic ; yet after such effect, would not the law impute malice? 
No person has a right to trifle in that manner to the injury of another.' 

1 Part of the opinion of Brackenridge, J., and the concurring opinion of Yeates, J., 
are omitted. See State v. Huntley, 3 Ire. (N. C.) 418; State v. Tolever, 5 Ire. (N. C.J 
452; Peniis v. Cribs, Add, (Pa.) 277 ; Henderson n Com., 8 Gratt. (Va ) 708. 



72 KEGINA V. ADAMS. [CHAP. II. 

EEGINA V. ADAMS. 

Court foe Crown Oases Reserved. 1888. 

{Reported 22 Q. B. D. 66.] 

Case stated by the Recorder of London for the opinion of the Court 
for the Consideration of Crown Cases Reserved. 

At the sessions of the Central Criminal Court, held on September 17, 
1888, J. C. Adams was tried on an indictment which charged him, in 
xhe third count, with having, on June 19, 1888, unlawfully, wickedly, 
and maliciously written and published to E. S. Y., the younger, who 
was a good, peaceable, virtuous, and worthy subject of our Lady the 
Queen, in the form of aJatteT^rected to her, the said E. S. Y., the 
said letter rnrtjini"."; '^'-Tri f"i'^'7-"~tiflfll""''j nnglipinns, and defgjiwv.^ 
tory matters _attd-fetrtnga of ang'^eoii cerning the ^ arnlBr iST-^PTTand of 
and concerning the character for virtue, modesty7and TiiOI'irtrLy then 
borne by the said E. S. Y. [the letter was set out], to the great damage, 
scandal, infam}', and disgrace of the said E. S. Y., to the evil example, 
etc., and against the peace, etc.-' 

At the close of the case for the prosecution counsel for the prisoner 
submitted that there was no case to go to the jury, on the grounds 
(inter alia) that to write and send to a person letters in the form of 
those set out in the indictment was not an indictable offence ; that the 
letter set out in the third count was neither a defamatorj' libel nor an 
obscene libel ; and that there had been no publication of it. 

The recorder declined to stop the case upon the objections taken, 
but left it to the jury, who convicted the prisoner on all the counts of 
the indictment. 

The recorder thereupon respited judgment and admitted the prisoner 
to bail. 

The question for the opinion of the Court was whether, upon the 
facts stated, the prisoner could properly be convicted on all or any of 
the counts of the indictment. 

Lord Coleridge, C. J. It is unnecessary to discuss some of the 
important questions which have been raised in this case. Upon those 
questions, therefore, I, and I believe the other members of the Court, 
desire to give no opinion. It appears to me that there is a very short 
and plain ground upon which this conviction can be sustained. It is a 
conviction upon an indictment, the third count of which charges that 
the letter there set out is a defamatory libel, tending to defame and 
bring into contempt the character of the person to whom it was sent. 
I am ^_thsj>piTilou tha1Hhaieii£LisjiJL5UGh_a_charaeter as-tliat-rtrtorfeifc- 

fov oke a brea ch of t he pe a^. At all events, the sending of such 
-n lyLLer to tbe pfil'BUh Lo whom it was sent might, under the circum- 
stances of her position and character, reasonably or probably tend to 
provoke a breach of the peace on her part, or on the part of those con- 

1 The evidence is omitted. — Ed. 



SECT. II.] COMMON-WEALTH V. WING. 73 

nected with her. The jury must be taken to have found that it was a 
defamatory libel which was calculated to provoke a breach of the peace ; 
and on that short ground I am of opinion that the conviction must be 
affirmed on the third count of tLe indictment. 

Manistt, Hawkins, Day, and A. L. Smith, JJ., concurred. 

Conviction affirmed.^ 

EEX V. HATHAWAY. 
King's Bench. 1701. 

[Reported 12 Mod. 556.] 

One Hathaway, a most notorious rogue, feigned himself bewitched 
and deprived of his sight, and pretended to have fasted nine weeks 
together ; and continuing, as he pretended, under this evil influence, he 
was advised, in order to discover the person supposed to have be- 
witched him, to boil his own water in a glass bottle till the bottle 
should break, and the first that came into the house after should be 
the witch ; and that if he scratched the bodj' of that person till he 
fetched blood, it would cure him ; which being done, and a poor old 
woman coming by chance into the house, she was seized on as the 
witch and obliged to submit to be scratched till the blood came ; 
whereupon the fellow pretended to find present ease. The poor woman 
hereupon was indicted for witchcraft, and tried and acquitted at Surrey 
assizes before Holt, C. J., a man of no great faith in these things ; and 
the fellow persisting in his wicked contrivance, pretended still to be ill, 
and the poor wnrrKiri^i nntwit l i i ); ii niin ^' t hr nic qnittfi i l, frr rrrri by the mob 

to^ jESe ii herg6lt"robe-S cratoho(L bY him. And this beiJT- •^" ^ 

to be all imposition, an informationwas filed against him. ' 

COMMONWEALTH v. WING. 

Supreme Judicial Court of Massachusetts. 1829, 

[Reported 9 Pickering, 1.] 

The defendant was indicted for maliciously discharging a gun, 
whereby a woman, named M. A. Gifford, was thrown into convul- 
sions and cramps. It was averred that the defendant well knew that 
she was subject to such convulsions and cramps upon the firing of a 
gun, and that at the time when the offence was committed, he was 
warned and requested not to fire. 

The case was tried before Wilde, J. 

It was proved that M. A. Gifford was "severely affected with a 
nervous disorder, and that she was uniformly thrown into a fit upon 
hearing a gun, thunder, or any other sudden noise, or by hearing the 

1 See State v. Roberts, 2 Marv. (Del.) 450; Com. v. Chapman, 13 Met. (Mass.) 68 
Compare Rex v. Treake, Comb. 13 ; Reg. v. Taylor, 2 Ld. Rajm. 879 ; State v. Edens 
95 N. C. 693. 



74 COMMONWEALTH V. WING. [CHAP. U. 

words "gun, ammunition," &c. mentioned. It was also proved that 
she had been in this situation for more than sis years. 

It was further proved that the defendant discharged the gun in a 
highway, for the purpose of Itilling a wild goose, at a place two or 
three rods from the house in which M. A. Gifford then lived ; which 
house was situated on a neck of land where citizens had from time 
immemorial resorted for the purpose of fowling. And it was also 
proved that immediately before the defendant discharged his gun, he 
was requested by M. A. Gifford's father not to fire, as it would throw 
his daughter into fits ; and evidence also was introduced showing the 
defendant's previous knowledge of the eflfect produced on her by the 
report of a gun, especially- when discharged near to her. 

The defendant contended that as he was engaged in a lawful occu- 
pation, and as M. A. Gifford had for so long a time been aiflicted 
with what had probably become an incurable disease, he was not 
liable to punishment for the commission of the act alleged in the 
indictment. 

The judge instructed the jury that if they believed that the defen- 
dant knew, or had good reason to believe, that the consequences 
above mentioned would be produced by the firing of the gun, and had 
notice to that effect immediately before the firing, they should return 
a verdict of guilty ; which they did accordingly. If this instruction 
was wrong, a new trial was to be granted. 

Warren for the defendant. The indictment is for an alleged of- 
fence, which is technically called a nuisance. It cannot be sustained, 
because the act done was not to the annoyance of the citizens gener- 
ally. Bac. Abr. Nuisance B ; Rex v. White, 1 Burr. 333 ; Rex v. 
Combrune, 1 Wils. 301 ; Rex v. Wheatly, 2 Burr. 1126 ; Rex v. Lloyd, 
4 Esp. 200 ; Arnold v. Jefferson, 3 Salk. 248. The actj in itself, was 
neither malum in se nor malum proluhitum. The defendant was in 
the exercise of a lawful employment, and the injury was to a single 
person. Her remedy is by action ; the Commonwealth is not inter- 
ested in the matter. The dictum of Sewall, C. J., in Cole v. Fisher, 
11 Mass. R. 139, — that where the discharge of a gun is unnecessary, 
a matter of idle sport and negligence, and still more where it is ac- 
companied with purposes of wanton and deliberate mischief, the 
party is liable as a public offender, — does not apply to this case ; for 
the act of the defendant does not come within either of those de- 
scriptions, and it was not done to the common danger of the citizens, 
but on a neck of land where citizens had immemorially resorted for 
the purpose of fowling. 

The nature of the disease is such that a citizen was not obliged, 
from regard to it, to refrain from his usual lawful pursuits. Where 
a person is suffering under a complaint which is aggravated by the 
transaction of the ordinary business of society, it is better that he 
should suffer than that the business of the community should be sus- 
pended. It is certainly better that he should be left to that remedy 



SECT. II.J REX V. MAUD. 75 

which the law gives every man for a violation of his private rights. 
If the above doctrine is not sound as applied to temporary diseases, 
it is when the affection is of so long standing as in this case. An 
ftction cannot be sustained for an injury which the party might have 
avoided by ordinary care. It was the duty of the woman to have 
removed from a neighborhood where the citizens have immemorially 
pursued an occupation which injuriously affected her health. Butter- 
field V. Forrester, 11 East, 60 ; Smith v. Smith, 2 Pick. 621 ; Rex v. 
Cross, 2 Carr. & Payne, 483. 

Morton, Attorney-General, contra, cited 4 Bl. Com. 197 ; and Cole 
V. Fisher, 11 Mass. R. 139. 

Parker, C. J., delivered the opinion of the court. If the indict- 
ment were for a ntiisaiice, the authorities cited by the defendant's 
counsel would clearly show that it could not be sustained ; for the 
most that could be made of it would be a private nuisance, for which 
an action on the case only would lie. Bjit we thinlc the off ence de- 
scribed is a Tniadp.meannr ^anrl not a nnisap^ — It w ati it wanT^o nant 

Vf TniaHniJ^ TTmjT^jlH-innB fn t.TiP porartn ^nrnriMPirprl ^ gftt^y fjjll 

-eertKe"'of the consequen pps. ar]d |iiiiTir, tn fTBwmL. The jury have 

reiwd fchuL"ClTe~act was maliciously done. . 

In the case of Cole v. Fisher, 11 Mass. R. 137, Chief Justice SewallA 
in delivering the opinion of the court, speaking of the discharging ot-\ 
guns unnecessarily, says, if it is a matter of idle sport and negligence, ' 
and still morewhen__tha-a:efc-i5~accompanied wit t i purpuses - of waa ton 
or deliberate mischief, t he guilty party is liable, not ^nly^ in a civil 
ae^fen, but aiS an orrender against the p nhlii pr ii i mil I i nVlt_y is 
liaWe 10 be indicted, &c. 

"-nMow the racts— proved in the case, namely, the defendant's previous 
knowledge that the woman was so affected by the report of a gun as 
to be thrown into fits, the knowledge he had that she was within 
hearing, the earnest request made to him not to discharge his gun, 
show such a disregard to the safety and even the life of the afflicted 
party, as makes the firing a wanton and deliberate act of mischief. 

Judgment on the verdict.^ 



REX V. MAUD. 

Bedfordshire Eyre, 1202. 

[Reported 1 Selden Soc. 27.] 

Maud, wife rff Hugh, was taken with a. false p;a.l1nn with which she 

sold beer, so that the keepers "of the m^as«xes_-t«stify that they took 

her selling beer with it. And since she cannot defend this, it is 

considered that she be in mercy. She made fine with two marks. 

1 But see Rogers w. Elliott, 146 Mass. 349. Compare State v. Buckman, 8 N. H. 
203 ; People v. Blake, 1 Wheel. (N. Y.) 490. For other kinds of personal injury, see 
State ». Cooper, 2 Zab. (N. J.) 52; State v. Slagle, 82 N. C. 653 ; Reg. v. Hogan, 
2 Den. C. C. 277 ; Com. o. Stoddard, 9 All, (Mass,) 280 ; Rex v. Treeve, 2 East P. C. 
«21 ; State v. Smith, 3 Hawks (N. C.) 378. 



76 KEGINA V. HANNON. [CHAP. It- 

ANONYMOUS. 

Common Bench. 1309. 

[Reported Year Book, 2 & 3 £dw. II {Seld. Soc.) 120.] 

A MAN was sued by the commonalty of the town of London for a tres- 
pass against the statute of forestallers (made) in the Guildhall, and 
(the plaintiffs) said that, whereas all the citizens of London came for 
their merchandise and foreign folk came with their merchandise to 
the city, to wit, with beasts, sheep, and poultry, etc., without which, 
the city cannot be sustained, this man is a co ra r i T gi<forestaller o f all the- 
things afgr^id, °" <^^'"'<^ whgn \\p tma hmigVit t.Vipm fV>r_g_ rf?rts>in aiim- 
he will ^eil them for_j iottMer^rongruHy~a:ntt~5gaTnst the common 
Ordinance, and to their damage, etc. 

Passeley for the defendant : "We do not believe that you have war- 
rant to try this plaint, for this is a matter which should be tried in the 
eyre, like a charge that a man is a common thief, a common robber, 
or a common breaker of parks, where no certain deed is laid to his 
icharge. The suit cannot be maintained unless some certain fact be 
'mentioned ; for, were it otherwise, every man might have this suit, 
whereas it belongs to the King and to his crown, which is not to be 
dismembered. Judgment, whether you can or ought to be received 
to this plaint. 

Therefore it was awarded that they took nothing of their plaint, etc» 
(and that the commonalty of London be amerced). 



EEGINA V. HANNON. 
Queen's Bench. 1704. 

[Reported 6 Mod. 311.] 

Hannon was indicted, for that being a communis deceptor of the 
Queen's people, he came to the wife of B. and made her believe that 
he had sold part of a ship to her husband, and upon that account got 
several sums of money from her. 

Br THE Court, 

First, '■^ communis deceptor" is too general, and so is "communis 
Oppressor," " communis pertubator," etc. and so of all other (except 
TOarretor and scold), without adding of particular instances. 

Secondly, The particular instance alledged here is of a private nature f 
if he had made use of any fMsv, token it woulHTiavelSeen othetwlser^ 

And the court ordered the indictment to be quashed. 



SECT. II.] KEX V. WHEATLY. 77 



REX V. WHEATLY. 
King's Bench. 1761. 

[Reported 2 Burrow, 1125.1] 

Defendant was indicted, for that he, being a common brewer, and 
intending to deceive and defraud one Richard Webb, delivered to him 
sixteen gallons, and no more, of amber beer, for and as eighteen gal- 
lons, which wanted two gallons of the due measure contracted to be 
■delivered ; and received 15s for the same ; to the evil example, &c., 
And against the peace, &c. After conviction before Lord Mansfield, 
C J., at Guildhall, Morton moved in arrest of judgment. 

Mr. Morton and Mr. Yates, who were of counsel for the defendant, 
.r>hjf;nt,prl that, ths fap.t. ^Iiar^ red wns ftot hing more t han a mere breach o f 
-a civil contract, noFaiTuiBictable o fliaac^'"'~To~prove this, they cited 
Rex V. Combrun, p. 1751, 24 G. 2 B. R., which was exactly and punc- 
tually the same case as the present, only mutatis mutandis. And 
Rex V. Driffield, Tr. 1754, 27, 28 G. 2 B. R. S. P. An indictment for 
■& cheat, in selling coals as and for two bushels, whereas it was a peck 
;short of that measure ; there the indictment was quashed on motion. 
Rex V. Hannah Heath : An indictment for selling and delivering 
iseventeen gallons, three quarts, and one-half pint of geneva (and the 
like of brandy) as and for a greater quantity, was quashed on motion. 

In 1 Salk. 151., Nehuff s Case, P. 4 Am. B. R., a certiorari was 
.-granted to remove the indictment from the Old Bailey ; because it was 
not a matter criminal : it was " borrowing £600 and promising to send 
a pledge of fine cloth and gold dust, and sending only some coarse 
■cloth, and no gold dust." 

I In Tremaine, title Indictments for Cheats, all of them either lay a 
Iconspiracy or show something amounting to a false token. 

A mere civil wrong will not support an indictment. And here is no 
•criminal charge. It is not alleged " that he used false measures." 
The prosecutor should have examined and seen that it was the right 
. and just quantitj'. 

Mr. Norton, pro rege, offered the following reasons why the judg- 
ment should not be arrested. 

The defendant has been convicted of the fact. He may bring a writ 
•of error, if the indictment is erroneous. 

1 s. 0. 1 William Blaokstone, 273. The statement of the case is taken from the 
iattei- report. 



78 SEX V. WHJEATLY. [CHAF. U. 

This is an indictable offence; 'tis a cheat, a public fraud in the 
course of his trade, — he is stated to be a brewer. There is a distinction 
between private frauds and frauds in the course of trade. The same 
fact may be a ground for a private action, and for an indictment too. 

None of tlie cited cases were after verdict. It might here (for aught 
that appears to the contrary) have been proved " that he sold this less 
quantity by false measure ; " and everything shall be presumed in 
favor of a verdict. And here is a false pretence, at the least ; and it 
appeared upon the trial to be a very foul case. 

The counsel for the defendant, in reply, said, that nothing can be 
intended or presumed in a criminal case but secundum allegata et 
probata; it might happen without his own personal knowledge. And 
they denied any distinction between this being done privately and its 
being done in the course of trade. 

Lord Mansfield. The question is, Whether the fact here alleged 
be an indictable crime or not. The fact alleged is : — 

[Then his Lordship stated the charge, verbatim.] 

The argument that has been urged by the prosecutor's counsel, from 
the present case's coming before the court after a verdict, and the cases 
cited being only of quashing upon motion, before any verdict really turns 
the other way ; because the Court may use a discretion, " whether it be 
right to quash upon motion or put the defendant to demur ; " but after 
verdict they are obliged to arrest the judgment if they see the charge to 
be insufficient. And in a criminal charge there is no latitude of inten- 
tion, to include an3thing more than is charged ; the charge must be 
explicit enough to support itself. 

Here the fact is allowed, but the consequence is denied : the objec- 
tion is, that the fact is not an offence indictable, though acknowledged 
to be true as charged. 

And that the fact here charged should not be considered as an indic- 
table offence, but left to a civil remedy b}' an action, is reasonable and 
right in the nature of the thing ; because it is only an inconvenience 
and injur}' to a private person, arising from that private person's own 
negligence and carelessness in not measuring the liquor, upon receiving 
it, to see whether it held'out the just measure or not. 

The offence that is indictable must be such a one as affects the pubj 
lie. As if a man uses false weights and measures, and sells by them 
to all or to many of his customers, or uses them in the general course 
of his dealing ; so, if a man defrauds another, under false tokens. For 
these are deceptions that common care and prudence are not sufficient 
to guard against. So, if there be a conspiracy to cheat ; for ordinary 
care and caution is no guard against this. 

Those cases are much more than mere private injuries : they are 
public offences. But here, it is a mere private imposition or deception. 
No false weights or measures are used, no false tokens given, no con- 
spiracy ; only an imposition upon the person he was dealing with, in 
delivering him a less quantity instead of a greater, which the other 



SECT. 11. j EEX V, WHEATLY. 79 

carelessly accepted. ' T is only a non-performance of his contract, for 
which non-performance lie may bring his action. 

The selling an unsound horse, as and for a sound one, is not indic- 
table ; the buyer should be more upon his guard. 

The several cases cited are alone sufficient to prove that the offence 
here charged is not an indictable offence. But besides these, my 
brother Deiiison informs me of another case, that has not been 
mentioned at the bar. It was M. 6 G. 1. B. R. Rex v. Wilders, a. 
brewer. He was indicted for a cheat in sending in to Mr. Hicks, an 
ale-house keeper, so many vessels of ale marked as containing such a 
measure, and writing a letter to Mr. Hicks, assuring him that the^' did 
contain that measure, when in fact they did not contain such measure, 
but so much less, &c. This indictment was quashed on argument, 
upon a motion, which is a stronger case than the present. 

Therefore the law is clearly established and settled ; and I think on 
right grounds ; but on whatever grounds it might have been originally 
established, yet it ought to be adhered to, after it is established and 
settled. 

Therefore (though I maj' be sorry for it in. the present case, as 
circumstanced) the judgment must be arrested. 

Mr. Just. DiiNisON concurred with his Lordship. 

This is nothing more than an action upon the case turned into au 
indictment. 'T is a private breach of contract. And if this were to be 
allowed of, it would alter the course of the law, by making the injured 
person a witness upon the indictment, which he could not be (for him- 
self) in an action. 

Here are no false weights, nor false measures, nor any false token 
at all, nor any conspiracy. 

In the case of the Queen v. Maccarty et al, 6 Mod. 301, 2 Ld. Raym. 
1179, there were false tokens, or what was considered as such. In the 
case of the Queen u. Jones, 1 Salk. 379, 2 Ld. Raym. 1013, 6 Mod. 
105, the defendant had received £20, pretending to be sent by one who 
did not send him. Et per Cur. . " It is notjndiftnblr nnlo^'^ h« -came_ 

with fals p^tftlfpriH , Wli I I III iir i l , la I niT'i-l. -n nn mnn fnr m nl7-injT n fnn l of 

another; let him bring his action." 



-tf-th ere be £a Is«--toEens, or a conspiracy, it is another case. The 



Queen v. Maccartj' was a conspiracy, as well as false tokens. Rex v. 
Wilders was a much stronger case than this, and was well considered. 
That was an imposition in the course of his trade, and the man had 
marked the vessels as containing more gallons than thej' did reallj- 
contain, and had written a letter to Mr. Hicks, attesting that they 
did so. 

But the prfiapnt, oaaf- i g pru afvypHit win n mnun hvpinh nf ,f>nntra.p.t : he 

has not delivered the quantity which he undertook to deliver. 

The Court use a discretion in quashing indictments on motion, but 
they are obliged to arrest judgment when the matter is not indictable. 
Anil this matter is not indictable, therefore the judgment ought to be 
arrested. 



80 BEX V. WHEATLT. [CHAP. II. 

Mr. Just. Foster. We are obliged to follow settled and established 
rules already fixed b}- former determinations in cases of the same kind. 

The case of Rex v. Wilders was a strong case, — too strong, perhaps, 
for there were false tokens ; the vessels were marked as containing a 
greater quantity than they really did. 

Mr. Just. WiLMOT concurred. This matter has been fully settled 
and established, and upon a reasonable foot. The true distinction that 
ought to be attended to in all cases of this kind, and which will solve 
tliem all, is this, — That in such impositions or deceits, where common 
prudence may guard persons against the suffering from them, the 
offence is not indictable, but the party is left to his civil remedy for the 
redress of the injury that has been done him ; but where false weights 
and measures are used, or false tokens produced, or such methods 
taken to cheat and deceive as people cannot, by any ordinary 
care or prudence, be guarded against, there it is an offence indictable. 

In the case of Rex v. Pinkney, P. 6 G. 2 B. R., upon an indictment 
" for selling a sack of corn (at Rippon market) which he falsely 
affirmed to contain a Winchester bushel, ubi revera et infacto plurimum 
deficiebat, &c.," the indictment was quashed upon motion. 

In the case now before us, the prosecutor might have measured the 
liquor before he accepted it, and it was his own indolence and 
negligence if he did not. Therefore common prudence might have 
guarded him against suffering any inconvenience by the defendant's 
offering him less than he had contracted for. 

This was the case of Rex v. Pinkney ; and it was there said, That 
if a shop-keeper who deals in cloth pretends to sell ten yards of cloth, 
but instead of ten yards bought of him, delivers only six, yet the 
bu3'er cannot indict him for delivering only six ; because he might 
have measured it, and seen whether it held out as it ought to do, or 
not. In this case of Rex v. Pinkney, and also in the case of Rex v. 
Combrun, a case of Rex v. Nicholson, at the sittings before Lord 
Raymond after Michaelmas term, 4 G. 2, was mentioned ; which was 
an indictment for selling six chaldron of coals, which ought to contain 
thirty-six bushels each, and delivering six bushels short. Lord Ray- 
mond was so clear in it that he ordered the defendant to be acquitted. 

Per Cue. unanimouslj', 

The judgment must be arrested} 

• See Bex v. Osbom, 3 Burr. 1697; Com. v. Warren, 6 Mass. 72. — Ed. 



SECT. III.] COMMONWEALTH V. EOKERT. 81 

SECTION m. 
Public Torts. 



COMMONWEALTH v. ECKERT. 

CODKT OF QuAETEE SESSIONS, PENNSYLVANIA, 1812. 
[Reported 2 Browne, 249.] 

The defendant was indicted for a misdemeanor, in cutting and 
deadening a black-walnut tree, on the common, or public ground, 
adjoining the village of Hanover, the property of which was vested in 
certain trustees, for the use of the inhabitants of said town, by deed 
from the original owner of the land. 

Bowie, for the defendant. It is a rule in morality, as well as in 
charity, to apply an innocent motive, rather than a malicious one, to 
have actuated the defendant. A crime or misdemeanor indictable, 
must be a violation of some known public law. 4 Bl. Com. 5 ; 1 Hawk. 
P. C. 366, 7, sect. 1. Act of Assembly against taking off or breaking 
knockers on doors, spouts, &e., breaking down or destroying signs, 
&c. Read Dig. 7, Act of 1772. These were offences not indictable 
at common law ; and therefore the necessity of the statute. A number 
of cases of a private nature are not indictable. 2 Hawk. P. C. 301. 
Such as breaking closes, &c. 3 Burr. 1698. Cases that apply to indi- 
viduals or to a parish are not indictable, and there is no difference in 
this case from that of six, eight, or ten tenants in common of a prop- 
erty ; and one of the number cutting a tree, an indictment could not be 
supported against him that did the act. 

Per Cueiam, Feanklin, President, to the jury : — 

The defendant is charged with a misdemeanor, in cutting and dead- 
ening a black-walnut tree, standing on public ground adjoining the 
town of Hanover, which ground appears to be vested by deed in cer- 
tain trustees, for the use and benefit of all the inhabitants of said 
town. This tree was kept and appropriated, by the people of that 
place, for shade and ornament. 

The doctrine on subjects of this kind is well laid down by the late 
Chief Justice McKean. 1 Dall. 335. Whatever amounts to a pub lic 
_jerr>ncr, gg killing a horse, poisoning clnckens, and the like, is the sub-_ 
ject of an indictment for a misdemeanor. 

■ "m^slhx, forms Ihe guiU of th e ludicttBgnt. Any evil design, proceed- 
ing from a depraved or wicked heart. 

If you should consider the tree was useful for public convenience, 
ornament, and shade (which we think has been fully proved), you may 
convict the defendant ; if not, acquit him.^ Verdict, Guilty. 

1 See Resp. v. Powell, 1 Dall. (Fa.) 47. 



82 REX V. KICHAKDS. [CHAP. IL 



KEX V. RICHAKDS. 

King's Bench. 1800. 
[Reported 8 T. R. 634.] 

This was an indictment against tiie defendants for not repairing 
a road. Tlie indictment stated that by virtue of an act of parliament-, 
-&l-€r«©- 3., intitled " an act for draining and dividing a certain moor 
or tract of waste land called King's sedgmore in the county of Somer- 
set" it was enacted that certain commissioners tlierein named should 
before making any allotments of the said moor set out and appoint such 
private roads and drove-waj's over the same as in the judgment of the 
said commissioners should be necessary' and convenient ; and that all 
private roads and ways so to be set out should be made and repaired 
at the expense of all or any of the persons interested in the said moor 
and in such manner as the said commissioners should direct; that 
certain commissioners under the act in execution of the powers thereby 
vested in them by their award set out and appointed a certain private 
road and drove-way in over and upon the said moor to be a private 
road an(i drove-way to be called Henley Drove-way (describing it) ; 
that the said commissioners also awarded that the said drove-way 
should be for the benefit use and enjoj'ment of the several owners 
tenants and occupiers for the time being of all and singular the tene- 
ments in the several parishes or hamlets of Highham Lowham Aller 
Pitney Long Sutton Huish Episcopi Butleigh Ashcott and Greinton in 
the said county in respect whereof and of the rights of common 
severally appurtenant thereto the divisions and allotments of the said 
moor were thereby assigned and allotted unto the same parishes or 
hamlets respectively ; that the said commissioners thereby ordered and 
directed that the said drove-way should for ever thereafter be repaired 
by the several owners tenants and occupiers for the time being of all 
and singular the tenements in the several parishes or hamlets of High- 
ham Lowham Aller Pltnej' Long Sutton and Hnish Episcopi in respect 
whereof and of the rights of common severally appurtenant thereto the 
divisions and allotments of the moor were thereby assigned and allotted 
unto the same parishes or hamlets respectively in equal shares and pro- 
portions, when and so often as need should be &c ; by reason whereof 
the said private road and drove-way became and was a private road 
and- drove-way for the purposes above mentioned, and by virtue of the 
said act and of the said award liable for ever hereafter to be from time 
to time amended and kept in repair in the manner and by the means 
aforesaid ; that on &c. the said way, called Henley Drove-Way, was 
ruinous and in decay for want of needful reparation thereof; that 
J. Richards late of Highham, and the five other defendants, (describ- 
ing them respectively as of the parishes of Lowham, Aller, Pitney, 
Long Sutton, and Huish Episcopi) being severally and respectively 
owners tenants and occupiers of certain tenements in the several 



SECr. III.] EEX V. KIOHAKDS, 83 

parishes or hamlets of Highham Lowham AUer Pitney Long Sutton 
and Huish Episcopi, in respect whereof and of the rights of common^ 
severally appurtenant thereto the divisions and allotments of the said 
. moor were thereby assigned unto the same parishes or hamlets, and\ 
being persons interested in the said moor, and by virtue of the premises' 
liable to keep in repair and amend the said drove-way, had not duly 
repaired and amended the same &c. The defendants pleaded not 
guilty; and on' the trial at the last assizes at Bridge water before 
Mr. Justice Gkose the jury found a special verdict.^ When this case 
was called on in the paper for argument, The Court asked the prose- 
cutor's counsel on what ground it could be contended that this was an 
indictable offence, the road in question being only a private road ? 

Praed, for the prosecutor, answered that this frM^ffk-a. private, road 
was gpwmj^ hy jdgf.iip nf ti^^gub lJc act of p arli ament, u nder which the 
defendants were directed to repair it ; that consequent"ly the not repair- 
ing was a disobedience of a public statute, and therefore the subject 
of an indictment. That this might be considered to a certain degree 
as concerning the public ; that even " a private act of parliament may 
oe given in evidence without comparing it with the record, if it con- 
cern a whole county, as the act of Bedford Levels." 12 Mod. 216. 
And that there was no other remedy than the present, because it 
appeared by the special verdict that there were no less than two 
hundred and fifty persons who were liable to the repair of this road, 
and that the difficulty of suing so many persons together was almost 
insuperable. 

But the Court interposed, and said th at, how eyrr mmrrnicint it 
might De that the detendants should be indicted, there wasnojegal 



gron fld on w -hi<}h-thi€4ndic tiu ei]l oou ld be s upported. That the known 
TU'te was that" those matters pnly that concerned tbe public were the 
subject of an indictment. That the road in question being described 
to be-a, priv ate road did not concern tne puohc, nor w as of a public" 
nature, FuFmerely concerned the individuals who had a right to use it. 
That the question was not varied by the circumstance that many indi- 
viduals were liable to repair, or that many others were entitled to the 
benefit of it ; that each party injured might bring his action against 
those on whom the duty was thrown. That the circumstance of this 
road having been set out under a public act of parliament did not make 
the non-repair of it an indictable offence ; that many public acts are 
passed which regulate private rights, but that it never was conceived 
that an indictment lay on that account for an infringement of such 
rights. That here the act was passed for a private purpose, that of 
dividing and allotting the estates of certain individuals. That even 
if it were true that there was no remedy by action the consequence 
would not follow that an indictment could be supported ; but that 
in truth the parties injured had another legal remedy. 

Judgment for the defendants. 
1 The special verdict is omitted. — Ed. 



84 COMMONWEALTH V. KING. [CHAP. IL 



COMMONWEALTH v. KING. 

SupKEMB Judicial Court of Massachusetts. 1847. 

[Reported \3 Met. 115.] 

The indictment, in this case, alleged that there was a common and 
public highway in the town of Sutton, called the Old Central Turnpike, 
and that the defendant, on the 1st of August 1846, " did unlawfully 
and injuriously put, place, lay and continue a large quantity of stones, 
in and upon a part of said highway, to wit, upon a space thereof ten 
rods long and one rod wide, and the said stones, so placed as aforesaid, 
he the said Wm. King, from said first day of August, until the finding 
of this bill, unlawfully and injuriously did keep, continue and maintain, 
in and upon said highway, wherebj' the same has been, during all the 
time aforesaid, and still is, greatly narrowed, obstructed and stopped 
up," &c. "against the peace," &c. "and contrary to the form of the 
statute in such case made and provided." ^ 

Dewet, J. . . . The next enquiry is, whether the facts alleged con- 

I stitute an offence at common law. Upon this point we have no doubt. 

I By the loca tion of a p ublic high way, w i th certain defined exteri or limits. 

Ithe public acquire an easement coixtensi vp with thfi limits of spch 

Ihiptwayr Whoever obstructs the full enjoyment of that easement, by 
snaking deposits, within such limits of the located highway, of timber, 

I Jstones or other things, to remain there and occupy a portion of such 
public highwaj', is guilty of a nuisance at common law. 

It was contended by the counsel for the defendant, that the rights of 
the public are confined exclusivelj^ to the made or travelled road, or to 
that 'part which might be safely and properly used for travelling; and 
that a deposit of timber, stones or other articles, upon a part of the 
located highway, which, from its want of adaptation to use for travel, 
could not be thus enjoyed, — as a portion of the way on which there 
was a high bank, or a deep ravine, — would not subject the party to an 
indictment for a nuisance upon the highway. This principle is sup- 
posed to be sanctioned by the decisions of this court in reference to the 
rights of travellers, holding that such travellers are to use the travelled 
or made road, and that if such road is of suitable width, and kept in 
proper repair, the town may have fully discharged its duty, although 
it has not made and kept in repair a road of the entire width of the 
located highway. But there is a manifest distinction between the two 
cases. In the case supposed, the traveller has all the beneflts of a 
public way secured to him. He only requires a road of proper width, 
and kept in good repair. But tjie town, on the other_haad,-fcQ_finahlp 
i tself to d ischarge its obligationjo "the 'public, requires the full and 



1 Only so much of the case as involves the question~S~a nuisance at common law 
is given. — Ed. 



SECT. III.J PEOPLE V. KUGGLES. 85 

entire use of the whole located highw ay. The space between the made 
5oad-aiidTEe exterior limits of the located highway may be required 
for various purposes ; as for making and keeping in repair the travelled 
path ; for making sluices and water-courses ; for furnishing earth to 
raise the road. And, not unfrequently, from the location of the road 
and from its exposure to be obstructed by snow, the entire width of 
the located road is required to be kept open, to guard against accumu- 
lations of snow that might otherwise wholly obstruct the public travel 
at such seasons. For these and other uses, in aid of what is the lead- 
ing object, the keeping in good repair of the made or travelled road, 
the general easement in the public, acquired by the location of a high- 
way, is coextensive with the exterior limits of the located highwaj' ; 
and the question of nuisance or no nuisance does not depend upon the 
fact, whether that part of the highway, which is alleged to have been 
unlawfully entered upon and obstructed by the defendant, was a portion 
of the highway capable of being used by the traveller. Whether it be 
so or not, an entry upon the located highway, and occupation of any 
portion of it by deposits of lumber, stones, &c., would be a nuisance, 
and subject the party to an indictment therefor.^ 



PEOPLE V. RUGGLES. 
Supreme Court op New York. 1811. 

[Reported 8 Johns. 290.] 

Indictment for blasphemy. After conviction the record was removed 
to the Supreme Court. Wendell, for the prisoner, now contended that 
the offence charged in the indictment was not punishable by the law of 
this state, though, he admitted, it was punishable by the common law 
of England, where Christianity makes part of the law of the land, on 
account of its connection with the established church.^ 

Kent, C. J. And why should not the language contained in the 
indictment be still an offence with us ? There is nothing in our man- 
ners or institutions which has prevented the application or the necessity 
of this part of the common law. W^. at-.anrl pgnall y in need, now^ s 
formerly, of ^ 11 thnt mftrsl di°"'"p^'i"; ""d "^ t^-^sp pri p ciplna of virtue, 
whi ch "Eeip to bind ancipty fogpthpr. TIia people of this state, in com- 
mon with the people of this country, profess the general doctrines of 
Christianity, as the rule of their faith and practice ; and to scandalize 
the author of these doctrines is not only, in a religious point of view, 
extremely impious, but, even in respect to the obligations due to soci- 

l See Hall's Case, 1 Mod. 76 ; State v. Peckard, 5 Harr. (Del.) 500 ; State v. Use- 
ful Manufactures Society, 44 N. J. Law 502 ; People v. Cnnniiigham, 1 Den. (N. Y.) 
524. 

' This short statement is substituted for that of the reporter. Only so much of the 
opinion is giyen as discusses the argument above advanced. — Ed. 



86 PEOPLE V. EUGGLES. [CHAP. II. 

ety, is a gross violation of decency and good order. ^Nothingcould^ be 
more offensive to the virtuous parJL Q£-the-eoTin5unity,'or moreTTij»iUQua_ 
'lilT.l.lii. Iiuhk .ill, nTthp Yniinp7 tban to declare suck prnfanltiV laff- 

^_J5 l. Jl wuulJ Ho to (iOtitoUM All distinctio n between things sacred and 
profane ; for to use the words of one of the greatest oracles of human 
wisdom, " profane scofBng doth by little and little deface the reverence 
for religion ; " and who adds, in another place, " two principal causes 
have I ever known of atheism, — curious controversies and profane 
scoffing." (Lord Bacon's Works, vol. ii, 291, 503.) TJungs-»b4«h 
corrupt moral_seiiliDiiSnt, as obscene actions, prints and writings, and 
even gross instances rTTnTTTm-Hnn , hivr, up on the same principle, been 
held indictable ; and shall we form an exception in these particulars to ~ 

"TEe rest of" the civilized world? No government among any of the 
polished nations of antiquity, and none of the institutions of modern 
Europe (a single and monitory case excepted), ever hazarded such a 
bold experiment upon the solidity of the public morals, as to permit 
with impiinitj', and under the sanction of their tribunals, the general 
religion of the community to be openly insulted and defamed. The 
very idea of jurisprudence with the ancient lawgivers and philosophers 
embraced the religion of the countiy. Jurisprudentia est divinarum 
atque hvmanariim rerum notitia. (Dig. b. 1. 10. 2. Gic. De Legibus, 
b. 2. passim.) 

The free, equal, and undisturbed enjoyment of religious opinion, 
whatever it may be, and free and decent discussions on any religious 

subject, is granted and secured ; hiA t" '•"^'ilf, with mnlininm nnrl-blAa- 

phemous contempt, the religion professed by almostJJTg^ whoJe eo mmu- 
ni t}- , io an - abuse of t hat righti Nor are we boundfby~ahy expressions 
-ift—tte" constitution, as some have strangely supposed, either not to 
punish at all, or to punish indiscriminately the like attacks upon tho 
religion of Mahomet or of the grand Lama ; and for this plain reason, 
that the case assumes that we are a Christian people, and the morality 
of the country is deeplj' ingrafted upon Christianity, and not upon the 
doctrines or worship of those impostors. Besides, the offence is crimen 
malitioB, and the imputation of malice could not be inferred from any 
invectives upon superstitions equally false and unknown. We are not 
to be restrained from animadversion upon offences against public de- 
cency, like those committed by Sir Charles Sedley (1 Sid. 168), or by 
one Rollo (Sayer, 158), merely because there may be savage tribes, and 
perhaps semi-barbarous nations, whose sense of shame would not be 
affected by what we should consider the most audacious outrages upon 
decorum. It is sufficient that the common law checks upon words and 
actions, dangerous to the public welfare, apply to our case, and are 
suited to the condition of this and every other people whose manners 
are refined, and whose morals have been elevated and inspired with a 
more enlarged benevolence, by means of the Christian religion.^ 

1 Ace. Updegraph v. Com., 11 S. & R. (Pa.) 394. — Ed. 



SECT, ill] state V. LINKHAW. 87 



REGINA V. BRADLAUGH. 

ASSIZES. 

[Reported 15 Cox C. C. 217.] 

Lord Coleridge, C. J.* . . . . But I have told you that, with re- 
gard to these libels, they are, in my judgment, in any view of the law, 
blasphemous libels. It is not merely that they asperse the doctrine of 
Christianity ; it is not merely that they question particular portions of 
the Hebrew Scriptures. I should suppose that there are few reasoning, 
thoughtful men to whom the character of David and the acts of Jehu 
may not have occasioned considerable question ; and to find them rep- 
resented as approved by an all-pure and all-merciful God may and must 
have raised very strong doubts. And if these things were argued 
with due gravity and propriety, I for one would never be a party, unless 
the law were clear, to saying to any man who put forward his views on 
those most sacred things, that he should be branded as apparently 
criminal because he differed from the majority of mankind in his relig- 
ious views or convictions on the subject of religion. If that were so, 
we should get into ages and times which, thank God, we do not live in, 
when people were put to death for opinions and beliefs which now al- 
most all of us believe to be true. It is not a question of that sort at all. 
It i s a question, first of all, whether these things are not in any point 
of view blasphemous libels, fchether they are not calculated and intpnflf|(^ 
to insu lt the feelings and the deepest religious convi ctions of th e great 

ma^nrit.y of t.he pprsnns ariTj^npjt wnnm we live ; and~if so, they are not 

t&"'be toieratea any more than other nuisance is tolerated. We_muat_ 
not Ho t.hinp ;s that are ontra^eo usto the general feeling of propriety 
•Smong the persons amongst whom we live. 



STATE V. LINKHAW. 
Supreme Court of North Carolina. 1873. 

[Reported 69 N. C. 214.] 

Settle, J. The defendant is indicted for disturbing a congie- 
gation while engaged in divine worship, and the disturbance is 
alleged to consist in his singing, which is described to be so peculiar 
as to excite mirth in one portion of the congregation and indigna- 
tion in the other. 

From the evidence reported by his honor who presided at the 

1 An extract from the charge only is given. — Ed. 



88 



EEX V. LYNN. [chap. IL 



trial, it app ears that at the end of e ach_Y er3e his Yoice j9_hea£d 
ftftPr_an^ TH^'7^theriTngers have ceasearand"tf iat the disturbance is 
decided and serious; that thecliurch _ members and autho rities 
expostulated with the defendanTaUoutTIs singing and the disturb- 
ance growing out of it; to all of which he replied "that he would 
worship his God, and that as a part of his worship it was his duty 
to sing." It was further in evidence that the defendant is a strict 

Imember of the church, and a man of most exemplary deportment. 
* " It was not contended by the State upon the evidence that he 
had any intention or purpose to disturb the congregation ; but on the 
contrary, it was admitted that he was conscientiously taking part in 
the religious services." 

This admission by the State puts an end to the prosecution. It is 
true, as said by his honor, that_a_maa-i3 g e nerally prpsumed tfi jntend_ 
rnn-rqnrnrci i nf hifi iii I , i, l iiil , he i r ll i i - pf n-jiirnptifrniq rebutted by a fact 

"Mrnitt^^i^y *^^ ^♦"^^ 

^iFwould seem that the defendant is a proper subject for the disci- 
pline of his church, but not for the discipline of the courts. 

Venire de novo.^ 



EEX V. LYNN. 

King's Bench. 1789. 

[Reported Leach {ith ed.), 497.] 

Lynn had been convicted of a misdemeanor on an indictment which 
charged that he, on such a day, had entered a cei'tain burying-ground, 
and taken from a coffin buried in the earth a dead body for the purpose 
of dissection. 

In Michaelmas Term, 1789, it was moved in the Court of King's 
Bench in arrest of the judgment, that this was an offence of ecclesiastical 
cognizance, and not indictable in any court of criminal jurisdiction at 
the common law. But by the Court, the offic e is cognizable in a 
criminal court, as Ijighly indecent, a nd contra bonos mo res .-and the 
circumstance oi iLy byiug fur LUu pTirposes of dissection does not make 
it a less indictable offence. 

The defendant, on the probability of his having committed this crime 
merely from ignorance, was only fined five marks. ^ 

1 See State v. Jasper, 4 Dev. (N. C.) 323. 

« See Eeg. o. Jacobaon, 14 Cox, C. C. 522. — Ed. 



SECT. III.] KANAVAN'S OASI!. 89 

KANAVAN'S CASE. 
Sdpeemb J0DICIAL Court of Maine. 1821. 

[Reported 1 Greenleaf, 226.] 

The Becond count stated that the defendant unlawfully and indecently 
took the body of [a] child and threw it into the river, against common 
decency, &c.^ 

The defendant being convicted on the second count, a motion was 
made in arrest of judgment, on the ground that the offence charged was 
not indictable at common law. 

By the Court. We have no doubt upon th is piib,jp"t,^ apH dn not 
hesitat e a m^ mgat- tt) p ro n o unc e ! the iiidicLmeut tu b «..gQ od and suffl ;^ 
'(jieiil, and Lhat there must be sentence against the prisoner. 

From our childhood we all have been accustomed to pay a reveren- 
tial respect to the sepulchres of our fathers, and to attach a character 
of sacredness to the grounds dedicated and enclosed as the cemeteries 
of the dead. Hence, before the late statute of Massachusetts was en- 
acted, it was an offence at common law to dig up the bodies of those 
who had been buried for the purpose of dissection. It is an outrage 
upon the public feelings, and torturing to the afflicted relatives of the 
deceased. Ifit be a crime thus to disturb the a shes of the de adij.t 
must also be a crime todepris o thom oi a . d<iCEirn)urial, by a disgrace ful 



"^XpOHUl'B, Ul difepObaTof the body P.nntrary f,n_iiaaffi>g. ap Inntr sanction ed, 
antl vthieh aru ju giitluful t u t hu -nyounded hearts of friends and mourn- 
ers. If a dead body may be thrown into a river, if may be cast into a 
street ; if the body of a child, so the body of an adult, male or female. 
Good mo rals, decency, our best f eelings, the law of the land, — all for- 
bid such p roceedings. It is imprudent to weaKe n the mllil6nce of tha*; 
sen timent wnicn gives^ solemnity and intere&t to everything cofifaected 
w^h thu Luml*—.^^ 

Our funeral rites and services are adapted to make deep impressions 
and to produce the best effects. The disposition to perform with all 
possible solemnity the funeral obsequies of the departed is universal in 
our country ; and even on the ocean, where the usual method of sepulture 
is out of the question, the occasion is marked with all the respect which 
circumstances will admit. Our legislature, also, has made it an offence 
in a civil officer to arrest a dead body by any process in his hands 
against the party while living ; it is an affront to a virtuous and decent 
public, not to be endured. 

It is to be hoped that punishment in this instance will serve to 
correct an}- mistaken ideas which may have been entertained as 10 
the nature of sucli an offence as this of which the prisoner stands 
convicted. 



90 COMMONWEALTH V. SHAKPLESS. [OHAP. II. 



COMMONWEALTH v. SHARPLESS. 
Supreme Court op Pennsylvania. 1815. 

[Reported 2 Sergeant S,- Rawle, 91.] 

TiLGHMAN, C. J.' This is an indictment against Jesse Sharpless 
and others for exhibiting an indecent picture to divers persons for 
money. The defendants consented that a verdict should go against 
them, and afterwards moved in arrest of judgment for several reasons. 

1. "That the matter laid in the indictment is not an indictable 
offence." It was denied, in the first place, that even a public exhibi- 
tion of an indecent picture was indictable ; but supposing it to be so, 
it was insisted that this indictment contained no charge of a public 
exhibition. In England there are some acts of immorality, such as 
adultery, of which the ecclesiastical courts have taken cognizance from 
very ancient times, and in such cases, although they tended to the cor- 
ruption of the public morals, the temporal courts have not assumed 
jurisdiction. This occasioned some uncertainty in the law ; some dif- 
ficulty in discriminating between the offences punishable in the tem- 
poral and ecclesiastical courts. Although there was no ground for 
this distinction in a country like ours, where there was no ecclesiastical 
jurisdiction, yet the common law principle was supposed to be in 
force, and to get rid of it punishments were inflicted by act of assem- 
bly. There is no act punishing t he offence charged against the 
dpfpndflj^^ "Mil thovofrvi-p. ^he cn.ae muAl lin dHi'iilH.il \\\u\n thp. prin- 
ci^es^E-Sie uumuiuu Itu^. ibat actioiiy of publi(:i indeceficy were 
always indictable, as tending to corrupt the public morals, I can have 
no doubt ; because, even in the profligate reign of Charles II., Sir 
Charles Sedley was punished by imprisonment and a heavy fine for 
standing naked in a balcony in a public part of the city of London. 
It is true that, besides this shameful exhibition, it is mentioned in 
some of the reports of that case that he threw down battles containing 
offensive liquor among the people ; but we have the highest authority 
for saying that the most criminal part of his conduct, and that which 
principally drew upon him the vengeance of the law, was the exposure 
of his person. For this I refer to the opinion of the judges in The 
Queen v. Curl, 2 Str. 792 ; Lord Mansfield, in The King v. Sir Francis 
Blake Delaval, &c., 3 Burr. 1438, and of Blackstone, in the 4th vol- 
ume of his Commentaries, page 64. Neither is there any doubt that the 

1 Part of this opinion only is given. Yeates, J., delivered a concurring opinion. 



SECT. III.] COMMONWEALTH V. SHAEPLESS. 91 

publication of an indecent book is indictable, although it was once 
doubted by the Court of King's Bench, in The Queen v. Reed (in the 
sixtli year of Queen Anne) . But tlie authority of that case was 
destroyed, upon great consideration, in "F lip Kin g-.i^, rim-Lfl George 
II.), 2 Str. 788. The law was in- Curl's case established upon true 
principles. What tended to corrupt society was jPeld to be a b reach 
of the peace and ^ puntshabl ejML-u mjct menE! The courts are guardians 
Tic morals, and therefore have jurisdiction in such cases. 
Hence it follo ws that an o ff°"^ft r"'-'Y i"*" pn^'vlnilil" if jnitp nature 
and py its exampl e it te ^g ttft ^b^ f^rrnpti nn of morals, althougn it p e 
'nut c oinm ittea in pnt^ic. In The King v. Delaval, &c., there was a 
conspiracy, and for that reason alone the court had jurisdiction ; yet 
Lord Mansfield expressed his opinion that they would have had juris- 
diction from the nature of the offence, which was the seduction of a 
young woman under the age of twenty-one, and placing her in the 
situation of a kept mistress, under the pretence of binding her as an 
apprentice to her keeper ; and he cited the opinion of Lord Hardwielie, 
who ordered an information to be filed against a man who had made a 
formal assignment of his wife to another person. In support of this 
we find an indictment iij Trem. PI. 213 (The King y. Dingley), for 
seducing a married woman to elope from her husband. Now, to apply 
these principles to the present case. The defendants are charged 
with exhibiting and showing to sundry persons, for money, a lewd, 
scandalous, and obscene painting. A picture tends to excite lus t as 
«t,rfinp ;1 , Y fis a, writj np- ; and the showing of a picture is as much a pub- 
lication as the selling of a book. Curl was convicted of selling a 
book. It is true, the indictment charged the act to have been in a pub- 
lic shop, but that can make no difference. The mischief was no 
greater than if he had taken the purchaser into a private room and 
sold him the book there. The law is not to be evaded by an artifice of 
that kind. If the privacy of the room was a protection, all the youth 
of the city might be corrupted by taking them one by one into a 
chamber, and there inflaming their passions by the exhibition of las- 
civious .pictures. In the eye of the law this would be a publication, 
and a most pernicious one. Then, although it is not said in the 
indictment in express terms that the defendants published the paint- 
ing, yet the averment is substantially the same, that is to say, that 
they exhibited it to sundry persons for money ; for that in law is a 
publication. 

Motion in arrest of judgment overruled, and judgment on 
the verdict?- 

» See Eeg. v. Grey, 4 F. & F. 73 ; Reg. v. Saunders, 1 Q. B. D. 15 ; Pike v. Com, 
2 Duv. (Ky.) 89. — Ed. 



92 EEX V. DELAVAL. [CHAP. 11. 



KEX V. DELAVAL. 
King's Bench. 1763. 

[Reported 3 Burrow, 1434.] 

Lord Mansfield now delivered the opinion of the court* 

This is a motion for an information against the defendants for a 
c onspiracy t o put this YPnng_girl (an apprentice to_onfi_jof them) i nto 
"If hands o f a~"gentleman of ranfe=:sHfcterliiHie}--for~the"piKpose--of 
arostitution" ; coiUiaiy Ltrflecency and morality, and without the knowl- 
edge or approbation of her father, who prosecutes them for it, and has 
now cleared himself of all imputation, and appears to be an innocent 
and an injured man. 

A female infant, then about fifteen, was bound apprentice by her 
father to the defendant Bates, a music-master ; the girl appearing to 
have natural talents for music. The father became bound to the 
master in the penalty' of £200 for his daughter's performance of the 
covenants contained in the indenture. Slie became eminent for vocal 
music ; and thereby gained a great profit to Bates, her master. During 
her apprenticeship, being then about seventeen, she is debauched by 
Sir Francis Delaval, whilst she resided in the house of Bates' father ; 
as Bates himself was a single man and no housekeeper. In April last. 
Bates, her master, indirectly assigns her to Sir Francis, as much as it 
was in his power to assign her over ; and this is done, plainly and 
manifestly, for bad purposes. Bates at the same time releases the 
penalty to the father, but without the father's application or even 
privity, and receives the £200 from Sir Francis, bj' the hands of his 
tailor, who is employed to pay it to Bates, and also enters into a bond 
to Bates to secure to him the profits arising from the girl's singing this 
summer at Marybone. And then she is indentured to Sir Francis 
Delaval to learn music of him ; and she covenants with him, both in 
the usual covenants of indentures of apprenticeship, and likewise in 
several others (as " pot to quit even his apartments"), etc.- These 
articles between the parties are signed by all but the father, and a 
bond is drawn from him, in the penalty of £200 for his daughter's per- 
formance of these covenants (which he never executed) . And the girl 
goes and lives and still does live with Sir Francis, notoriously, as a 
kept mistress. 

Thus she has been played over, by Bates, into his hands, for this 
purpose. No man can avoid seeing all this ; let him wink ever so 
much. 

I remember a cause in the court of chancery, wherein it appeared 
that a man had formerly assigned his wife over to another man, and 
Lord Hardwicke directed a prosecution for that transaction, as being 

1 Part of the opinion only is given. 



SECT, III.j 



REGINA V. BEANWORTH. 



93 



notoriouslx-anrl gros'Tlji.against public decency and go od mane 
Sols the present case. 

It is true that many offences of the incontinent Itind fall properly 
under the jurisdiction of the ecclesiastical court, and are appropri- 
ated to it. But if you except tliose appropriated casee, this court is 
the custos morum of the people, and has the superin tendency of 
offences contra bonos mores ; and upon this ground both Sir Charles 
Sedley and Curl, who had been guilty of offences against good manners, 
were prosecuted here. 

Howey ei:, VipsirlpH Hiia, tViprf; is , in the preaa iit— ea.«i s . ■ar-canspiracY 

aEd COnt^eracv a mnngat t.hp flpfptiflants, v^\\ \(^h nrp r^l parly gi) ^ indis- 
pu tably within the prope r jnrifidicti"" -^f <^i^ig r>nnr% 

And in the conspiracy they were all three concerned. 

Therefore let the rule be absolute against all three. ^ 



REGINA -v. BRANWORTH. 

King's Bench. 1704. 

lEeported 6 Mod. 240.] 

Indictment by a jury of the town of Portsmouth, " for that he, 
being an idle person, did wander in the said town selling of small 
wares as a petit chapman." 

To maintain this indictment it was urged that a petit chapman is a 
vagabond by the statute of 39 Eliz. c. 4. ; and though some petit 
chapmen, that is, such as are legally qualified by the statute of 8 & 9 
Will. 3, 25, may now lawfully use that occupation, yet that act excepts 
boroughs and corporations, so that as to them they remain in statu quo. 

Holt, Chief Justice. Is a vagabond quatenus such, indictable ? It 
seems not ; for at common law a man might go where he would ; but if 
h e be an idle a nd loose person, youmax-tnkp tuin up a s a vagraa J-i,..a,nd 
BTnd him to hisggo d ht\iana; ^c3 Sf\^aov iiQaa\^ ; and by the Statute 
T Df La tSourers he may oe compelled to serve. Tliere is indeed a way by 
law of punishing incorrigible rogues, by burning them in the shoulder, 
and sending them to the gallies ; from whence it may be urged, that 
there must be a way before of convicting them of being rogues, because 
they cannot otherwise be punished as incorrigible rogues ; and there- 
fore that conviction must first be by indictment. 

But by Holt, Chief Justice, No ; but by being judged by a justice of 
peace to be a vagrant, and used by him as such ; and if he offend again, 
he ma y hfi jr |r|irti;tfl m p """"v^^" vagrant, 
lule for quashing it was 

1 See Reg. v. Webb, 1 Den. C. C. 33S'; Reg. v. Elliot, L. & C. 103. —Ed. 



94 



BAKER V. STATE. 



[chap. II. 



BAKER V. STATE. 



Supreme Codrt of New Jersey. 1890. 



{Reported 53 N. J. Law, 45.] 



Dixon, J.* The plaintiff in error was convicted in the Camden 
Quarter Sessions of being a common scold. 

One ground on which she seeks a reversal of the judgment is because 
the indictment does not state the particular facts which make a com- 
mon scold. But it is not necessary that the indictment should be so 
explicit. It is enough for it to aver that the accused is a common 
scold, to the common nuisance, etc. Whpi-p tlw nffpn oe cons ists, not 
of a single act, but of a h abitual course of conduct, an indictment nee'd 
, jml (iha rge tne aetails of that ciOuUuct, Wlll cU are only evi(Jence ^ the 
- misdemeanor, but must charge LUti ^tihera i practice which co nstitutes 
thfi p'''""" 'tiR°'^' Hawk., bk. 2, ch. 25, §§ 57, 59 ; Commonwealth a. 
Pray, 13 Pick. 359, 362 ; Whart. Cr. PI. & Pr., § 155. 
f Another reason urged for reversal is, that the court charged the jury 
as follows : " The evidence on the part of the state consists of a number 
of witnesses who have sworn, not that she only scolded one person at 
one time, but that she did it to several persons on several occasions. 
Now, if you believe she did that thing, if j'ou believe the evidence on 
the part of the state, she is guilty of being a common nuisance to the 
neighborhood in which she resides." 

This charge did not correctly point out to the jury the facts required 
to warrant a conviction, nor submit to their judgment, as it should, the 
question whether such facts were proved. A womaji-d©«&.^ot neces- 
[jecomea common scold by scolding several__persOns or^several 
tTT iliii liiliili nf |i||i|iiii).~»M4;7iTi7 






which is ^■■|minai.:! and whether the scoldings to which the State's wit- 
nesses testified were so frequent as to prove the existence of the habit, 
and whether the habit was indulged under such circumstances as to 
distui-b the public peace, were questj cinn which Uic JUfs;. ailone could 
i.iwfii]]^- Ha^.i/io and wliich were no less important than the credibility 
of witnesses. Brown v. State, 20 Vroora 61.^ 



^ Part of the opinion is omitted. — Ed. 

2 Ace. Foxby's Case, 6 Mod. 11 ; Com. v. Mohn, 52 Pa. 243. See State v. Davis, 
139 N. C. 547. 



SECT. III.] KING V. PEOPLE. 95 

COMMONWEALTH v. SMITH. 
Supreme Judicial Court op Massachusetts. 1850. 
_. [Reported 6 Cush. 80.] 

The defendants were tried before Mellen, J., in the court of common 
pleas, and convicted, on a complaint originally made to a justice of the 
peace, in which it was alleged that the defendants, on the 17th of April, 
1850, at Grafton, " with force and arms, were disturbers and breakers 
of the peace, and then and there contriving and intending to disturb the 
peace of said commonwealth, did, in one of the public streets and other 
public places of said town, utter loud exclamations and outcries, and 
other loud noises, and did then and thereb3- draw together a number of 
persons, ta, the ^reat dis t iirhinfo frf divi ^ rn ritiiv ^ni in evil example 
to aU others in like cases to offend against good morals, against the 
peace of said commonwealth, and contrary to the form of the statutes 
in such case made and provided." 

The defendants moved in arrest of judgment, on the ground that no 
offence was set forth and alleged in the complaint. The motion. was 
overruled, arid the defendants excepted. 

■ Dewey, J. The judgment in this case must be arrested. No offence 
ja t.Pfiipi(-illy nhnrfy""^ '" *''^'° complaint. The " disturbance of divers 
citizens " by noises in ilie pUbliu itfeets is not a proper setting out of 
the offence here intended to be charged. If the acts done by the par- 
ties constitute anj' criminal offence, it is that of a nuisance. As such 
it o ught to have been alleged th at the noises ma de b}^ the defendants 
were to the great damage and comm on nuisance"of all thfe citiz fiha-of 
the commonwealth Lheie iuhablLlUg, being, and residing, &c" 

Judgment arrested} 



KING V. PEOPLE. 
Court of Appeals of New York. 1881. 

[Reported 83 A^. Y. 587 ] 

Andrews, J. The indictment charges the plaintiff in error with 
keeping a disorderly and common bawdy and gambling house, con- 
cluding ad commune nocumentum . The evidence abundanth- sus- 
tained the charge, and justified the jury in finding that the defendant 
kept a house to which gamblers and prostitutes resorted for the pur- 
pose of gambling and prostitution. 

1 See State i\ Appling, 25 Mo. 315 ; State w Powell, 70 N. C. 67 , Com. «. Linn (Pa.) 
27 Atl. 843 ; Com. v. Spratt, U Phila. (Pa.) 365 ; Bell w. State, 1 Swan (Tenn.) 42. 



96 



KING V. PEOPLE. 



[chap. II, 



T^e court, in the cours&j&f ^he clidigo r-s lated to tb " jp'-y t.^ gt^- was 
not ne G l' Sbciij, Uj_^ fli5twtg-ttrg 1iff>-i juu of Ik U i'i j i iiii a ilijcu'tki' l y^ use, 
TTc^shonl d be disturbed by nniss. a nd refused to charge 
IhtiL, in Ol ' dtJl ' M c onvict the detendant of keeping a disorder!}' house, 
the jury must find that the house was so kept as to disturb, annoy, and 
disquiet the neighbors and the people passing and repassing the house. 
An exception was taken to the charge in this respect and to the refusal 
to charge as requested. 

The exception was not well taken. The keeping of a common 
bawdy or gambling house constitutes the house so kept a disorderly 
house and an indictable nuisance at common law. Rex v. Dixon, 10 
Mod. 335 ; 1 Hawk. P. C. 693. It is a public offence, for the reason 
that its direct tendency is to debauch and corrupt the public morals, to 
encourage idle and dissolute habits and to disturb the public peace. It 
is not an essential element that it should be so kept that the neighbor- 
hood is disturbed by the noise, or that the immoral practices should be 
open to public observation. _TheJaw, it is true, gives a remedy by 
indictment against those who unduIy^isJiyrb the quiet of a community 
by noises which tend to impair the enjoymetTtvQf life, but it doga_nat^ 
q-pfiij^f* "^"g"' •"*""" "*" tihp° ° for gre atipr pnH'n jnjTT^^i whig h aris e from 
jH'art''^°s whiotLd estro}' the peace oL Jimilimj and disturb and under- 

jnine the foundations of g ^'P'"^ nrijpr anH y'l-t'ip ~~ 

I The court also charged, that if prostitutes came to the defendant's 
Italoon for the purpose of prostitution, and there consummated their 
I Intent, to the knowledge and with the consent of the defendant, the 
Hury should find him guilty. The defendant's counsel excepted, and 
requested the court to charge that, in order to find the defendant 
guilty of keeping a bawdy house, the jury must find that he kept his 
house for the resort and unlawful commerce of lewd people of both 
sexes. The court said : " I have charged the jury op that subject, and 
decline to change ray charge ; I have substantially so charged ; " and 
exception was taken to the refusal of the court to charge as requested. 
In this there was no error. If the defendant's house was the resort of 
prostitutes plying their vocation there, to the knowledge of the defend- 
ant, the house was a bawdy house ; and this was what in substance the 
court charged, and the court, in stating that it had charged substan- 
tially as requested by the defendant's counsel, gave the defendant the 
benefit of the definition contained in his request. 

The defendant's counsel requested the court to charge that the play- 
ing of cards in the defendant's house does not, of itself, make it a 
gambling house; and the court, in reply, said: "Except that it is the 
gambling for money that makes it a disorderly house." The defend- 
ant's counsel excepted. The request was directed to the point that 
the mere playing of cards in a house did not constitute the house a 
gambling house ; and the remark of the court, in response to the 
request, amounted to an assent to this proposition. 

The defendant's counsel claims that the remark is to be construed 



SECT. 111.] EEX V. SMITH. 97 

as affirming that if the jury should find that the defendant permitted 
gaming in his house on a single occasion he could be convicted. But 
the remark of the court is to be construed in connection with the pre- 
vious charge and the occasion on which it was made. The court had 
°Tnt"d t" t>'° j'v y that if thn (^nfrin(j .^,pt kept agamJiliag-5oSeJ^3E5et 
"gamblers resorte d-to- play f arja gn^J' an9' Th M~Srrplgy , t.r» tl^p lfnr.wlprinro 
of the de fendant , he w as pfuil tv" The counsel requested the courE to 
charge a specific proposition, which the court substantially consented 
to, and added the element to which the defendant's request pointed, 
viz., that the playing must be for money in order to make the house a 
gambling house. If the defendant desired a specific instruction upon 
the point now made, he should have requested it. The court had 
properly defined the offence of keeping a gambling house, and the 
remai'k of the court clearly referred to a house of this character. 

These are all the exceptions relied upon b3- counsel. We think none 
of them are well taken, and that the conviction should be affirmed. 

All concur. Judgment affirmed.^ 



REX V. SMITH. 
King's Bench. 1726. 

[Reported 1 Strange, 704.] 

The defendant was convicted on an indictment for making great 
noises in the night with a speaking trumpet, to tlie disturbance of the 
neighboi-liood ; which the court held to be a nuisance, and fined the 
defendant £5. 

1 See De Forest v. U. S., 11 App. D. C. 458 ; Smith w. Com., 6 B. Mon. (Ky.) 21 ; 
State V. Haines, 30 Me. 65 ; People v. Jackson, 3 Den. (N. Y.) 101. — Ed. 



98 HALL'S CASE. [CHAP. 11. 



REX V. CROSS. 

Westminster Sittings. 1826. 

[Reported 2 C. Sj-P. 483.] 

Indictment for a nuisance in keeping a house for slauglitering horses 
at a place called Bell Isle, in the parish of St. Mary, Islington. There 
were also counts framed on a private Act of Parliament, 59 Geo. III. 
c. 39, s. 88, on which no question was raised. Plea, not guilty. 

It was proved that very offensive smells proceeded from the defend- 
ant's slaughtering house to the annoyance of those who lived near it, 
and also of persons who passed along a turnpike road, leading from 
Battle Bridge to Holloway. 

The defendant put in a certificate and license under the statute 26 
Geo. III. c. 71, s. 1, authorizing him to keep a house for the slaughter- 
ing of horses. 

Abbott, C. J. This certificate is no defence, and even if it were a 
license from all the magistrates in the county to the defendant to 
sJMUghter horses in this very place itwniild r jnt entj tl e^the defendant to 
continijg^jhgjntwness-hlUJjj i^oMtLhrin T. pft erit becomes a public nui sance 
tnthe npigjihnrhnnrl ■ If a certain noxious trade is already established 
m a place remoE^ from habitations and public roads, and persons after- 
wards come and build houses within the reach of its noxious effects, or 
if a public road be made so near to it that the carrying on of the trade 
l)ecomes a nuisance to the persons using the road ; in those cases tlie 
i party would be entitled to continue his trade, because his trade was 
\ legal before the erection of the houses in the one case and the making 
of the road in the other. Verdict, Guilty.^ 



HALL'S CASE. 

King's Bench. 1671. 

[Reported 1 Ventrls, 169.] 

Complaint was made to the Lord Chief Justice by divers of the 
inhabitants about Charing-Cross, that Jacob Hall was erecting of a 
great booth in the street there, intending to show his feats of activity, 
and dancing upon the ropes there, to their great annoyance by reason 
of the crowd of idle and naughty people that would be drawn thither, 
and their apprentices inveigled from their shops. 

Upon this the Chief Justice appointed him to be sent for into the 
court, and that an indictment should be presented to the grand jury of 

1 See Com. v. Perry, 139 Mass. 198. 



SECT. III.] ANONYMOUS. 99 

tnis matter ; and withal the court warned him, that he should proceed 
no further. 

But he being dismissed, thej- were presently after informed that he 
caused his workmen to go on. Whereupon they commanded the mar- 
shal to fetch him into court ; and being brought in and demanded, 
how he durst go on in contempt of the court, he with great impudence 
affirmed, that he had the King's warrant for it, and promise to bear him 
harmless. 

Then they required of him a recognizance of £300, that he should 
cease further building ; which he obstinatel}- refused and was commit- 
ted. And the court caused a record to be made of this nuisance, as 
upon their own view (it being in their way to Westminster), and awarded 
a writ thereupon to the Sheriff of Middlesux, commanding him to pros- 
trate the building. 

„Anfl the i^r,i]ft said, thinf i ;s of tl- ij-, mtnvr fmjit nnt tn be placed 



amongst people's habitations, ■ind__tlifit il ii'i'i 'I tiniiinpp Tn-Htn J^ng'^i 



baTfg injecti' - 



ANONYMOUS. 

Nisi Pkius. 1699. 

[Reported 12 Morfcrn, 342.] 

One was indicted for a nuisance for keeping several barrels of gun- 
powder in a house in Brentford town, sometimes two days, sometimes a 
week, till he could convenientlj- send them to London. Wherein 

Holt, C. J., resolved, 1st. That to support this indictment there must 
be- apparent danger, or mischief already done.'' 

2dly. Though it had been done for fifty or sixty years, yet if it be a 
nnisance time will not make it lawful. 

3dly. If, at the time of setting up this house in which the gunpowder 
is kept there had been no houses near enough to be prejudiced by it, 
but some were built since, it would be at peril of builder. 

4thly. Though gunpowder be a necessary thing, and for defence of 
the kingdom, yet if it be kept in such a place as it is dangerous to the 
inhabitants or passengers it will be a nuisance. 

1 See Eex v. Bradford, Comb. 304. 

« See Feo. v. Sands, 1 Johns. (N. Y.) 78. 



100 REX V. BURNETT. , fCHAP. II. 



EEX V. BURNETT. 
King's Bench. 1815. 

[Reported 4 Maule and Selwyn, 272.] 

The defendant, an apothecary, was indicted by that addition at the 
Middlesex Sessions that he, on, etc., in the fifty-fourth year, etc., and on 
divers other days between that da}' and the 29th of July, with force and 
arms at, etc., unlawfully and injuriouslj' did inoculate one A. S. an 
infant of seven months, one W. M. an infant of one year, and divers 
other infants of tender years, whose names are unknown, with a certain 
contagious and dangerous disease called the small pox, by means of 
which the said A. S., W. M., and the said other infants on the said day 
and on the other days, etc., at, etc., became and were dangerouslj' ill 
of the said contagious disease ; and the defendant, well knowing the 
premises, after he had so inoculated them, and while they were so 
dangerously ill of the said contagious disease on, etc., at, etc., did 
unlawfully and injuriously cause the said A. S., W. M., and the said 
other infants, to be carried into and along a certain public street and 
highwa}', called, etc., in and along which divers subjects were then 
passing, and near to divers dwelling-houses, etc., to the great danger 
of infecting with the said contagious disease all the subjects who were 
on those daj's and times in and near the said street and highway, 
dwelling-houses, etc., who had not had the disease, and ad commune 
nocumentum, etc. 

The indictment being removed into this court, the defendant pleaded 
not guilty, and was found guiltj'. 

And now it was moved bj^ W. Owen, in arrest of judgment, that this 
was not anj' offence. And he said that this indictment differed materially 
from that in Rex v. Vantandillo, 4 M. & S. 73 ; for bj' this indictment it 
appears that the defendant is bj' profession a person qualified to inoc- 
ulate with this disease, provided it be lawful for any person to inoculate 
with it. Therefore unless the court determine that the inoculating 
with the small pox has now become of itself unlawful, there is nothing 
in this indictment to show it unlawful ; for as to its being alleged that 
he caused them to be carried along the street, that is no more than 
this, that he directed the patients to attend him for advice instead of 
visiting them, or that he prescribed what he might deem essential to 
their recovery, air and exercise. And in Rex v. Sutton, which was an 
indictment for keeping an inoculating house, and therefore much more 
likel}' to spread infection than what has been done here, the court said 
that the defendant might demur. 

Lord Ellenborough, C. J. The indictment lays it to be unlawfully 
and injuriousl}', and to make that out, it must be shown that what was 
done was in the manner of doing it incautious, and likely to affect the 
health pf others. The words unlawfully and injuriously preclude all 



SEUT. III.J EEGINA V. PAEDENTON. 10] 

/egal cause of excuse. -'^"'1 tll"1 igh inocul atJAn for t,]^° f^nin^' p^^- "'"j 
.bepractised lawf ully and Innocen tly, j'et it must be under suc h guards 
as not to endanger the public hea lth by bOMBaUnicati ng this int^ctio iis 
■jjisea se. 

DaSpier, J. The charge amounts to this, that the defendant, after 
inoculating the children, unlawfully exposed them, while infected with 
the disease, in the public street to the danger of the public health. 

Le Blanc, J. in passing sentence observed that the introduction 
of Yaccination did not render the practise of inoculation for the small 
pox unlawful, but that in all times it was unlawful, and an indictable 
offence, to expose persons infected with contagious disorders, and 
therefore liable to communicate them to the public, in a public place 
of resort. 1 

ITie defendant was sentenced to six months' imprisonmetit. 



I 
Lord Ellenborough, C. J., in Williams v. East India Co., 3 East 192, 
200. That the declaration in imputing to the defendants the having 
wrongfully put on board a ship, without notice to those concerned in 
the management of the ship, an article of an highlj' dangerous com- 
bustible nature, imputes to the defendants a criminal negligence cannot 
well be questioned. In order to make the putting on board wrongful 
the defendants must be conusant of the dangerous quality of the article 
put on board ; aiid if being so, they yet gave no notice considering the 
probable danger thereby occasioned to the lives of those on board, it 
amounts to a species of delinquency' in the persons concerned in .so 
putting such dangerous article on board, for which they are criminally 
liable, and punishable as for a misdemeanor at least. 



REGINA v. PAEDENTON. 

Central Criminal Court. 1853. 

[Reported 6 Cox C. C. 247.] 

Richard Pardenton and Joseph Woods were indicted for unlawfully 
and negligently driving a certain railway engine in an incautious, care- 
less, and negligent manner, and without regarding a certain signal of 
danger, whereby the life and limbs of divers persons were greatly en- 
dangered. Three other counts varying the manner of stating the 
charge. 

1 See Eeg. v. Henson, Dears. 24 ; Reg. v. Lister, Dears. & B. 209 (but see PeopJa 
V. Sands, 1 Johns. 78) ; U. S. v. Hart, 1 Pet. C. C. 390. — Ed. 



102 KEX V. EODEEICK. [CIIAP. II. 

The indictment was founded upon the 13th, 14th, and 15th sections 
of 3 & 4 Vict. c. 97. A difficulty occurred on the first three counts, 
founded on the 13th section, as to the jurisdiction of this Court ; it 
being directed that upon the magistrate declining to act summarily, the 
complaint should be removed to the Quarter Sessions.'' 

Chambers [for the prosecution] admitted that there was no act 
which placed the Central Criminal Court in the same position as a Court 
of Quarter Sessions. But still the question would arise whether, 
although the oflFence was alleged to be against the form of the statute, 
the indictment did not disclose an offence at common law, where it 
charged acts endangering, the lives of Her Majesty's subjects. 

Cresswell, J. Do you mean to argue that if a man were to gallop 
a horse furiously through the public streets without hurting any person, 
that he would be guilty of a misdemeanor because he might be convicted 
of manslaughter if any one were knocked down by him and killed? 

Without hearing the evidence, I think this case is now ripe for de- 
cision. Whatever construction may be put upon the 13th and 14th 
sections of the act referred to as regards the first three counts, I have 
no diffi culty in saying that these counts_dojiQtjdiaclfi§eanyoffence at 
common law. 



SECTION IV. 

Incomplete Offences. 

REX V. RODERICK. 
Stafford Assizes. 1837. 

[Reported 1 C.Sf P. 795.] 

Misdemeanor. The first count of the indictment charged the pris- 
oner with unlawfully knowing a child under the age of twelve years. 
Second count, for attempting so to do. Third count, for a common 
assault. 

F. V. Lee, for the prisoner, objected that an attempt to commit a 
statutory misdemeanor was not a misdemeanor. 

Godson, for the prosecution, cited the case of Rex ■;;. Butler, 6 C. & P. 
368. 

Parke, B. If this offence is made a misdemeanor by statute, it is 
made so for all purposes. There are many cases in which an attempt 
to commit a misdemeanor has been held to be a misdemeanor ; and an 
a ttemt)t to comm it a. "-'i R rlPiP '""i OV '° "i mir'1"m"n i n n r ir hr-TTTrr th r nttrnrr ' 

'Iscreated by statute or was an oflfence atcomjjijm^iEJs::;— — — _ 

""^ ' ' ~ ' Verdict, guilty. 

1 This short statement is taken from the report in 38 Cent. Crim, Ct. Eep. 691. 
Only so much of the case as discusses the offence at common law is given. Ed. 



SECT. IV.] REGINA V. COLLINS. 103 



REGINA V. COLLINS. 
Chown Case Reserved. 1864. 

[Reported 9 Cox C. C. 497.] 

Case reserved for the opinion of this court by the Deputy-Assistant 
Judge at the Middlesex Sessions. 

The prisoners were tried before me at the Middlesex Sessions on an 
indictment which stated that they unlawfully did attempt to commit a 
certain felony ; that is to say, that thej' did then put and place one or 
the hands of each of them into the gown pocket of a certain woman, 
whose name is to the jurors unknown, with intent the property of the 
said woman, in the said gown pocket then being, from the person of 
the said woman to steal, &c. 

The evidence showed clearlj' that one of the prisoners put his hand 
into the gown pocket of a lady, and that the others were all concerned 
in the transaction. 

The witness who proved the case said on cross-examination that he 
asked the lady if she had lost anything, and she said " No." 

Forthe defence it was conte nded that to put a hand into an empty 
pocket wa s not an nrromjtt to c ommit felony, and that as it was not 
proved attirmativelj' that there was any jlropert}- in the pocket at the 
time, it must be taken that there was not, and as larceny was the steal- 
ing of some chattel, if there was not any chattel to be stolen, putting 
the hand in the pocket could not be considered as a step towards the 
completion of the offence. 

I declined to stop the case upon this objection ; but as such cases 
are of frequent occurrence, I thought it right that the point should be 
determined b}' the authority of the Court of Criminal Appeal. 

The jury found all the prisoners guilt}', and the question upon which 
the opinion of j-our Lordships is respectfully requested is, whether 
under the circumstances the verdict is sustainable in point of law ? 

The prisoners are in custody awaiting sentence. 

Joseph Payne, Deputy-Assistant Judge. 

Poland, for the prisoners, The conviction is bad. It is not an 
indictable offence to put a hand into an empty pocket with intent to 
steal, but an offence*pnnishable only under the Vagrant Act. It is not 
alleged in the indictment that there was anj- propertj' in the pocket. 
This is very like the case of Reg. v. M'Pherson (1 Dears. & B. 197 ; 
7 Cox Crim. Cas. 281), where it was held that a man who was charged 
with breaking and entering a dwelling-house and stealing certain spe- 
cified goods, could not be convicted unless the specified goods were 
in the house, notw'ithstanding other goods were there. [Cockburn, 
C. J. That case proceeds on the ground that you must prove the 
property as laid.] In the course of the argument Bramweli., B.. put 
this verj' case, and said : "The argument that a man putting his hand 



104 RKGINA V. COLLINS. [cHAP. II. 

into an empty pocket might be convicted of attempting to steal, 
appeared to me at first plausible ; but supposing a man, believing a 
block of wood to be a man wlio was his deadly enemy, struck it a blow 
intending to murder, could he be convicted of attempting to murder the 
man he took it to be? " So in E. v. Scudder (3 C. & P. 605) it was 
held that there could not be a conviction for administering a drug to a 
woman to procure abortion, if it appeared that the woman was not 
with child at all. That case was before the Consolidation Act (24 & 
25 Vict. c. 96). [Bramwell, B. You may put this case: Suppose a 
man takes away an umbrella from a stand with intent to steal it, believ- 
ing it not to be his own, but it turns out to be his own, could he be 
convicted of attempting to steal ?] It is submitted that he could not. 

Metcalfe, for the prosecution. The fallac}' in the argument on the 
other side consists in assuming that it is necessarj' to prove anything 
more than an attempt to steal. The intent to steal, it is conceded, is 
not sufficient ; but any act done to carry out the intent, as putting a 
hand into the pocket, will do. [Crompton, J. Suppose a man were 
to go down a lane armed with a pistol, with the intention to rob a 
particular person, whom he expected would pass that wa}', and the per- 
son does not happen to come, would that be an attempt to rob the 
person ?] 

CocKBURN, C. J. We are all of opinion that this conviction cannot 
be sustained, and in so holding it is necessary' to observe that the judg- 
ment proceeds on the assumption that the question, whether there was 
anything in the pocket of the prosecutrix which might have been the 
subject of larceny, does not appear to have been left to the jurj-. The 
case was reserved for the opinion of this court on the question, whether, 
supposing a person to put his hand into the pocket of another for the 
purpose of larceny , there being at the time nothing in the pocket, that 
is an attempt to commit larcenj-? We are far from saying that if the 
question whether there was anything in the pocket of the prosecutrix 
had been left to the jur^', there was not evidence on which they might 
have found that there was, in which case the conviction would have 
been affirmed. Bu L - Rssuming that there was no thinp; in the pocket of 
tjipprr)aprait,riv,^tlip^p.hHJgp of yitgrn pting t o commi t larceny cannot " be" 
sustaine";t: TTiis case is governed by that of Eeg. v. MThefson ;""" ang 
we think that an attempt tn- comm.i.L-a- fplnny can onl}' be made'ouj' 
when, if no interruption had taken place, the attempt could have been- 
^carned ouf bLiccci jLjf ull Tr'an d the felonv_comple ted of the att empt to 
commi t which the partyJ a-chargecT TrTthis case, if there was nothing 
imtie pocKet ot tne prosecutrix, in our opinion the attempt to commit 
larceny cannot be established. It may be illustrated by the case of a 
person going into a room, the door of which he finds open, for the pur- 
pose of stealing whatever property he may find there, and finding 
nothing in the room, in that case no larceny could be committed, and 
therefore no attempt to commit larceny could be committed. In the 
absence, therefore, of any finding by the jury in this case, either di- 



SECT. IV.] COMMONWEALTH V. GREEN. 105 

rectly, or inferentially by their verdict, that there waa any property in 
the pocket of the prosecutrix, we think that this conviction must be 
quashed.^ Conviction quashed. 



COMMONWEALTH v. GEEEN. 
SuPKEME Judicial Court of Massachusetts. 1824. 

[Reported 2 Pickering, 380.] 

At May term, 1823, in the count3' of Hampden, the prisoner, an 
infant under the age of fourteen years, was convicted of an assault with 
intent to commit a rape. 

And now, upon a motion in arrest of judgment, M H. Mills and 
Q. Bliss, junior, for the prisoner, contended that it was clear from 
all the authorities that an infant under that age is presumed by 
law to be unable to commit a rape (1 Haile's P. C. 630 ; 4 Bl. 
Com. 212; 1 East's P. C. 446, § 8) ; and in 3 Chit. Cr. L. 811, it 
is said that no evidence will be admitted to implicate him as the 
actual ravisher, though he may be guilty as an abettor. It would be 
absurd then to saj' that he may be indicted for an attempt to do what 
the law presumes him incapable of doing. Suppose an assault by a 
man upon another man dressed in woman's apparel ; an indictment 
charging Mm with an assault with intent to commit a rape could not be 
sustained. So a female could not be indicted fpr an assault with such 
an intent. An indictment for throwing oil of vitriol with intent to 
burn a person's clothes might be good ; but not so of an indictment for 
throwing water with such an intent. If a woman were indicted for 
petty treason, and it should appear that she had not been married, she 
could not be convicted. A man cannot be convicted of a rape on his 
own wife, nor of attempting to commit one, because the matrimonial 
consent cannot be retracted. In like manner the prisoner cannot be 
convicted of a rape, nor of an attempt to commit one, because the law 
presumes him to be incapable. To constitute an offence there must be 
an intent coupled with an act, and likewise a legal ability to do the 
thing attempted. In regard to the ph^-sical powers of the prisoner the 
court cannot go into the inquiry whether here is a particular exception 

1 This decision was orerrnled by Keg. i;. Ring, 17 Cox, C. C. 491. 
• " If a statute simply made it a felony to attempt to kill any human being, or to 
conspire to do so, an attempt by means of witchcraft, or a conspiracy to kill by means 
of charms and incantations, would not be an offense within such a statute. The poT- 
erty of language compels one to say, ' an attempt to kill by way of witchcraft,' but 
such an attempt is really no attempt at all to kill. It is true the sin or wickedness 
may be as great as an attempt or conspiracy by competent means ; but human laws are 
made, not to punish sin, but to prevent crime and mischief." — Pollock, C. B., in 
Att'y-Gen'l v. Sillem, 2 H. & C. 431, 525.— Ed. 



106 COMMONWEALTH V. GilEEN. [CHAP. IL 

eoiitraiy to the general rule of law. "We do not contend that the pris- 
oner may not be punished for the assault, but onl}- that he is not indict- 
able for an assault with the intent alleged in this indictment. 

Davis, Solicitor-General, for the Commonwealth. The maxim that 
an infant under the age of fourteen years is presumed unable to com- 
mit a rape, is indeed found in the books. It originated in ancient 
times, and it requires to be subjected to the examination of a modern 
judicial tribunal. That no evidence shall be admitted to impeach this 
presumption is the dictum of one writer only, and it cannot hold uni- 
versally. In some cases an infant under fourteen j-ears is physicallj' 
able, and there was evidence of it in the present case ; it would be 
absurd then by such presumption to shut out the fact itself. The 
maxim is founded on the principle that there must be both penetration 
and emission ; but this idea is now exploded. 1 Hale's P. C. 628 ; 
3 Inst. 59, 60 ; 1 East's P. C. 436, § 3 ; 1 Russell on Crimes, 805. In 
Pennsylvania v. Sullivan, Addis. 143, it i° °gjd tln^t *^'^ ^'SPni?? ^^ th° 

crime is the vinlon^p tr» |,|^p pprann ^ TnTTeeHn gg nf thp wmTTan An 

, flijuij Lo thy ISelingsinay be inflicted by a person under fourteen years 
jas much as by one over tliat age ; and where there is a guiltj- inten- 
Ition in the perpetrator of the injur}', there seems to be no good rea- 
. son for exonerating him from punishment on account of his phj'sical 
incapacitj-. 

Mills, in replj', said the law was not clear as to what facts are 
necessary to constitute the crime of rape, and in addition to the author- 
ties before cited to this point, he referred to 12 Co. 37 ; 1 Hawk. 
P. C. c. 41, § 3. 

By the Court (Paeker, C. J., dissenting). The court are of opin- 
ion that the verdict must stand and judgment be rendered on it. The 
law which regards infants under fourteen as incapable of committing 
rape was established in favorem vitce, and ought not to be applied by 
analogy to an inferior offence, the commission of which is not punished 
with death. A minor of fourteen j'ears of age, or just under, is capable 
of that kind of force which constitutes an essential ingredient in the 
crime of rape, and he may make an assault with an intent to commit that 
crime, although by an artificial rule he is not punishable for the crime 
itself. An intention to do an act does not necessarilj' imply an ability 
to do it ; as a man who is emasculated may use force with intent to 
ravish, although possibl}', if a certain effect should be now, as it was 
formerl\-, held essential to the crime, he could not be convicted of a, 
rape. Females might be in as much danger from precocious boys as 
from men, if such boys are to escape with impunity from felonious 
assaults, as well as from the felony itself'' Motion overruled. 

1 Contra, State v. Sam, Winston, 300 (attempt) ; Eex v. Elder.shaw, 3 C. & P. 396 ; 
Eeg. V. Philips, 8 C. & P. 736 ; State v. Handy, 4 Harr. 566 (assaults with intent). 



SECT. IV.J COMMONWEALTH V. MCDONALD. 107 



COMMONWEALTH v. McDONALD. 
Supreme Judicial Court of Massachusetts. 1850. 

^Reported 5 Gushing, 365.] 

The defendant was indicted in the municipal couit, and there tried 
before Mellen, J., for an attempt to commit a larceny from the 
person. 

At the trial, there being no evidence, on the part of the prosecution, 
that the individual from whom the defendant was charged with an 
attempt to steal, had any property upon his person at the time of the 
alleged attempt, the defendant asked the judge to rule that the indict- 
ment could not be sustained.^ 

But the presiding judge ruled otherwise ; and, the jury thereupon 
returning a verdict of guilty, the defendant excepted. 

T. Willey, for the defendant. 

Clifford, Attorney-General, for the Commonwealth. 

Fletcher, J. It was said, in argument for the defendant, that he 
could not be said to have attempted to steal the property of the un- 
known person, if there was no property to be stolen ; and that therefore 
the indictment should have set out the property and shown the exist- 
ence and nature of it by the proof. But it will appear at once, by a 
simple reference to the import of the term " attempt," that this propo- 
sition cannot be maintained. T g attempt is to m ake an effor t to effect 
8omfi_nhjact) to make a trial or experiment, to endeavor, to use exer- 
'"tion for some purpose. A man may make an attempt, an effort, a trial, 
to steal, by breaking open a trunk, and be disappointed in not finding 
the object of pursuit, and so not steal in fact. Still he remains never- 
theless chargeable with the attempt, and with the act done towards the 
commission of the theft. So a man may make an attempt, an experi- 
ment, to pick a pocket, by thrusting his hand into it, and not succeed, 
because there happens to be nothing in the pocket. Still he has clearly 
made the attempt, and done the act towards the commission of the 
offence. So in the present case it is not probable that the defendant 
had in view any particular article, or had any knowledge whether or not 
there was anything in the pocket of the unknown person ; but he 
attempted to pick the pocket of whatever he might find in it, if haply 
he should find anything ; and the attempt, with the act done of thrust- 
ing his hand into the pocket, made the offence complete. It was an 
experiment, and an experiment which, in the language of the statute, 
failed ; and it is as much wi thin the terms an H mpgning- nf thp st.ntnfr 
if it failed by reason of there Dei ng notb inp; i" t.hp pppkpt, as if it lia d 
TtLlLud fiuin du_y ul hei ca nsg : I'he following cases fully support tlie 
""vinw laken m this case, and I am not aware of an}' opposing authori- 

^ Ouly so much of the case as relates to this point is printed. 



108 PEOPLE V> LEE KONG. [CIIAP. II. 

ties : King v. Higgins, 2 East, 5 ; People v. Bush, 4 Hill, 133 ; Josslya 
V. Commonwealth, 6 Met. 236 ; Rogers v. Commonwealth, 5 S. & R. 
463. 

This decision is confined to the particular case under consideration,, 
of an attempt to steal from the person ; as there may perhaps be cases 
of attempts to steal where it would be necessary to set out the par- 
ticular property attempted to be stolen, and the value. It not being 
necessary, in the present case, to set out in the indictment the property 
attempted to be stolen, the defendant's exception to the ruling of the 
judge, that there need be no evidence of anj- property in the pocket of 
the unknown person, cannot, of course, be sustained, unless such evi- 
dence was made necessary bj' the allegations in the indictment. 

The indictment alleges that the defendant attempted to steal from the- 
unknown person his personal property then in his pocket and in his- 
possession, neither the name nor the value of the property being known 
to the jurors. But this allegation is wholly unnecessary and imma- 
terial, and may be stricken out ; and the indictment will still remain 
sufficient, and contain all the allegations necessary to make out the 
offence against the defendant, and to warrant the conviction. 

It not being necessary to allege that there was anything in the 
pocket of the unknown person, and as all that part of the indictment 
may be stricken out, tli e ruling of the onnrt . that, there need be no evi- 
de nce of any property in the po c ket of the _£)erson. was correct, and i& 
"Tully supported by authority. Roscoe, CrimTE^T-Wtrr''''^ 

JExeeptions overruled.^ 



PEOPLE V. LEE KONG. 
Supreme Court of California. 1892, 

[Reported 9.5 California, 666.] 

Garoutte, J. Appellant was convicted of the crime of an as- 
sault with intent to commit murder, and now prosecutes this appeal,, 
insisting that the evidence is insufficient to support the verdict. 

The facts of the case are novel in the extreme, and when applied; 
to principles of criminal law, a question arises for determination upoa 
which counsel have cited no precedent. 

A policeman secretly bored a hole in the roof of appellant's build- 
ing, for the purpose of determining, by a view from that point of 
observation, whether or not he was conducting therein a gambling or 
lottery game. This fact came to the knowledge of appellant, and 
upon a certain night, believing that the policeman was upon the roof 

1 Accord State v. "Wilson, 30 Conu. 505 ; People v. Jones, 46 Mich. 441 ; People v. 
Moran, 123 N. Y. 254. And see Harvick v. State, 49 Ark. 514; Clark v. State, 86 
Tenn. 511. 



SECT. IV.] PEOPLE V. LEE KONG. 109 

at the contemplated point of observation, he fired his pistol at the 
spot. He shot in no fright, and his aim was good, for the bullet 
passed through the roof at the point intended ; but very fortunately 
for the ofBcer of the law, at the moment of attack he was upon the 
roof at a different spot, viewing the scene of action, and thus no 
substantial results followed from appellant's fire. 

The intent to kill is quite apparent from the evidence, and the 
single question is presented, Do the facts stated constitute an assault? 
Our criminal code defines an assault to be " an nnlawfi^l att^pmpi^ 
coupled with a p resent , ability, to commit a violent injury upon the 
person of another:*' iT will thus be se en_that to constitute an assault 
two elements are necessary, and the ahsenc^^nf" eir.her " is fatal to^ the 
charge? There "must be an unlawfu l attempt, and there must b e a 
presen t ability, to inflict the inju ry. In this case it is plain that the 
appellant made an attempt to kill the officer. It is equally plain that 
this attempt was an unlawful one. For the intent to kill was present 
in his mind at the time he fired the shot, and if death had been the 
result, under the facts as disclosed, there was no legal justification to 
avail him. The fact that the officer was not at the spot where the 
attacking party imagined he was, and where the bullet pierced the 
I'oof, renders it no less an attempt to kill. It is a well-settled prin-1 
■ciple of criminal law in this country, that where the criminal result 
of an attempt is not accomplished simply because of an obstruction 
in the way of the thing to be operated upon, and these facts are un- 
known to the aggressor at the time, the criminal attempt is committed. 
Thus an attempt to pick one's pocket or to steal from his person, 
when he has nothing in his pocket or on his person, completes the 
■offence to the same degree as if he had money or other personal prop- 
erty which could be the subject of larceny. State v. Wilson, 30 
Conn. 500 ; Commonwealth v. McDonald, 5 Cush. 365 ; People v. 
Jones, 46 Mich. 441 ; People v. Moran, 123 N. Y. 254. 

Jo kill, was such attempt coupled with the present ability to noonm, 
^Ijgb—t ho deed? — irct the case of People v. Yslas, 27 Cal. 633, this 
•court said : ' ' The common-law definition of an assault is substan- 
tially the same as that found in our statute." Conceding such to be 
the fact, we cannot indorse those authorities, principally English, 
which hold that an assault may be committed by a person pointing 
in a threatening manner an unloaded gun at another ; and this, too, 
regardless of the fact whether the party holding the gun thought it 
was loaded, or whether the party at whom it was menacingly pointed 
was thereby placed in great fear. Under our statute it cannot be 
said that a person with an unloaded gun would have the present 
ability to inflict an injury upon another many yards distant, however 
apparent and unlawful his attempt to do so might be. It was held, 
in the case of State v. Swails, 8 Ind. 524, that there was no assault 
to commit murder where A fires a gun at B at a distance of forty 



110 PEOPLE V. LEE KONG. [CHAP. IL 

feet, with intent to murder him, if the gun is in fact loaded with 
powder and a slight cotton wad, although A believes it to be loaded 
with powder and ball. The later Indiana cases support this rule, 
although in Kunkle v. State, 32 Ind. 220, the court, in speaking of 
the Swails case, said : " But if the case is to be understood as laying 
down the broad proposition that to constitute an assault . . . with 
intent to commit felony, the intent and the present ability to execute 
must necessarily be conjoined, it does not command our assent or 
approval." In the face of the fact that the statute of this State in 
terms requires that in order to constitute an assault the unlawful 
attempt and present ability must be conjoined, Kunkle v. State, 32 
Ind. 220, can have no weight here. In State v. Napper, 6 Nev. 115, 
the court reversed the judgment upon the ground that the people 
failed to prove that the pistol with which the assault was alleged 
to have been made was loaded, and that consequently there was no 
proof that the defendant had the present ability to inflict the 
injury. 

It is not the purpose of the court to draw nice distinctions between 
an attempt to commit an offence and an assault with intent to commit 
the offence, for such distinctions could only have the effect to favor 
the escape of criminals from their just deservings. And in view of 
the fact that all assaults to commit felonies can be prosecuted as 
attempts, we can see no object in carrying the discussion of the sub- 
ject to any greater lengths. 

Tn t.hia caae the a]Tp e11ant had the presen t ability toinflift t tho in.^ 
_Jiiry He knew the orticer Wai3 upon the roof, ana Knowing that fact 
he fired through the roof with the full determination of killing him. 
The fact that he was mistaken in judgment as to the exact spot where 
his intended victim was located is immaterial. That the shot did 
not fulfil the mission intended was not attributable to forbearance or 
kindness of heart upon defendant's part ; neither did the officer es- 
cape by reason of the fact of his being so far distant that the deadly 
missile could do him no harm. He was sufficiently near to be killed 
from a bullet from the pistol, and his antagonist fired with the intent 
of killing him. Appellant's mistake as to the policeman's exact loca- 
tion upon the roof affords no excuse for his act, and causes the act 
to be no less an assault. These acts disclose an assault to murder as 
fully as though a person should fire into a house with the intention 
of killing the occupant, who fortunately escaped the range of the 
bullet. See Cowley v. State, 10 Lea, 282. The fact that the shots 
were directed indiscriminately into the house rather than that the 
intended murderer calculated that the occupant was located at a par- 
ticular spot, and then trained his fire to that point, could not affect 
the question. The assault would be complete and entire in either 
case. If a man intending murder, being in darkness and guided by 
sound only, should fire, and the bullet should pierce the spot where 
the party was supposed to be, but by a mistake in hearing the in- 



SECT. IV.] BESPUBLICA V. MALIN. Ill 

tended victim was not at the point of danger, but some distance 
tiierefrom, and yet witliin reach of the pistol-ball, the crime of assault 
to commit murder would be made out ; for the unlawful attempt and 
the present ability are found coupled together. If appellant's aim 
had not been good, or if through fright or accident when pointing 
the weapon or pulling the trigger, or if the ball had been deflected in 
its course from the intended point of attack, and by reason of the 
occurrence of any one of these contingencies the party had been shot 
and killed, a murder would have been committed. Such being the 
fact, the assault is established. 

The fact of itself that the policeman was two feet or ten feet from 
the spot where the fire was directed, or that he was at the right hand 
or at the left hand or behind the defendant at the time the shot was 
fired, is immaterial upon this question. That element of the case 
does not go to the question of present ability, but pertains to the 
unlawful attempt. 

Let the judgment and order be affirmed. 

Pattekson, J., concurred. 

Harbison, J., concurring. I concur in the judgment, upon the 
ground that upon the evidence before them the jury have determined, 
that the unlawful attempt of the defendant was coupled with a present 
ability — that is, an ability by the means then employed by him in 
furtherance of such attempt — to commit murder upon the policeman.^ 



EESPUBLICA V. MALIN. 
Oter and Terminer, Philadelphia. 1778. 

[Reported 1 Dallas, 33.] 

Indictment for high treason.'' The prisoner, mistaking a corps of 
American troops for British, went over to them. And now the Attor- 
ney-General offered evidence of words spoken by the defendant, to 
prove this mistake, and his real intention of joining and adhering to 
the enemy. 

Br THE Court. No evidence of words relative to the mistake of 
the American troops can be admitted ; for any adherence to them, < 
though contrary to the design of the party, cannot possibly come 
within the idea of treason. \ 

1 Ace. State v. Mitchell (Mo.), 71 S. W. 175. In that case Gantt, J., said : " The 
intent eyidenced by the firing into the bedroom with a deadly weapon, accompanied 
by a present capacity in defendant to murder Warren if he were in the room, and the 
failure to do so only because Warren happily retired npstairs instead of in the bed 
into which defendant flred, made out a perfect case of an attempt." 

* The statement of the case is abridged, and part only of the opinion is given. 



112 PEOPLE V. JAFFE. [CHAP. IL 

PEOPLE V. JAFFE. 

Court of Appeals of New York. 1908. 

{Reported 185 N. Y. 497.] 

WiLLAED Bartlett, J. The indictment charged that the defendant- 
on the 6th day of October, 1902, in the county of New York, feloni- 
ously received twenty yards of cloth of the value of twenty-five cents a 
yard belonging to the copartnership of J. W. Goddard & Son, k)jow- 
ingtha f; t.hp s-' fl prfrpn-fiV tiifi been feloniously stole n, taken and carnea" 
away from the owners. It was found under section 550 of the Penal 
Code, which provides that a person who buys or receives any stolen 
property, knowing the same to have been stolen, is guilty of criminally 
receiving such property. The defendant was convicted of an attempt 
to commit the crime charged in the indictment. The proof clearly 
showed, and the district attorney conceded upon the trial, that the 
goods which the defendant attempted to purchase on October 6th, 1902, 
had lost their character as stolen goods at the time when they were 
offered to the defendant, and when he sought to buy them. In fact 
the property had been restored to the owners and was wholly within 
their control, and was offered to the defendant by their authority and 
through their agency. The question presented by this appeal, there- 
fore, is whether upon an indictment for receiving goods knowing them 
to have been stolen the defendant may be convicted of an attempt to 
commit the crime where it appears without dispute that the property 
which he sought to receive was not in fact stolen property. 

The conviction was sustained by the Appellate Division chiefly upon 
the authority of the numerpus cases in which it has been held that one 
may be convicted of an attempt to corumit a crime notwithstanding the 
existence of facts unknown to him which would have rendered the com- 
plete perpetration of the crime itself impossible. Notably among 
these are what may be called the pickpocket cases, where in prosecu- 
tions for attempts to commit larceny from the person by pocket picking 
it is held not to be necessary to allege or prove that there was any- 
thing in the pocket which could be the subject of larceny. (Common- 
wealth V. McDonald, 5 Cush. 365 ; Rogers v. Commonwealth, 5 S. & . 
E. 463 ; State v. Wilson, 30 Conn. 500; People v. Moran, 123 N. Y. 
254.) Much reliance was also placed in the opinion of the learned 
Appellate Division upon the case of People v. Gardner (144 N. Y. 119), 
where a conviction of an attempt to commit the crime of extortion was 
upheld, although the woman from whom the defendant sought to obtain 
money by a threat to accuse her of a crime was not induced to pay the 
money by fear, but was acting at the time as a decoy for the police, 
and hence could not have been subjected to the influence of fear. 

In passing upon the question here presented for our determhiation, 
it is important to bear in mind precisely what it was that the defend- 



SECT. IV.] PEOPLE V. JAFFE. 113 

ant attempted to do. He simply made an effort to purchase certain 
specific pieces of cloth. He believed the cloth to be stolen property, 
but it was not such in fact. The purchase, therefore, if it had been 
completely effected, could not constitute the crime of receiving stolen 
property, knowing it to be stolen, since there could be no such thing as 
knowledge on the part of the defendant of a non-existent fact, although 
there might be a belief on his part that the fact existed. As Mr. 
Bishop well says, it is a mere truism that there can be no receiving of 
stolen goods which have not been stolen. (2 Bishop's New Crim. Law, 
§ 1140.) It is equally difficult to perceive how there can be an attempt 
to receive stolen goods, knowing them to have been stolen, when they 
have not been stolen in fact. 

The crucial distinction^ bet ween the case before us an d the pickpock et 
cases, and others involving the same principle, lies not in the poasi- 
fellily Oi' impossibility of the commission of th e_crlme. but In the fact 
'that m the present __casa,lh£-Jiclv-jriiich-^it-.TCairrrnTibtlitiiii Mir^ntent 
-flf-tEe" defendant to commit, would not have been a crime if it had 
Bee n consum m.atfidir~If^he had actually paid for the goods which he 
desirea to Duy, and received them into his possession, he would have 
committed no offence under section 550 of the Penal Code, because the 
very definition in that section of the offence of criminally receiving prop- 
erty makes it an essential element of the crime that the accused shall 
have known the property to haVe been stolen or wrongfully appropriated 
in such manner as to constitute larceny. This knowledge being a ma- 
terial ingredient to the offence it is manifest that it cannot exist unless 
the property has in fact been stolen or larcenously appropriated. No 
man can know that to be so which is not so in truth and in fact. He 
may believe it to be so, but belief is not enough under this statute. In 
the present case it appeared not only by the proof but by the express 
concession of the prosecuting officer that the goods which the defendant 
intended to purchase had lost their character as stolen goods at the 
time of the proposed transaction. Hence, no matter what was the 
motive of the defendant, and no matter what he supposed, he could do 
no act which was intrinsically adapted to the then present successful 
perpetration of the crime denounced b}' this section of the Penal Code, 
because neither he nor any one in the world could know that the 
property was stolen property, inasmuch as it was not in fact stolen 
property. 

In the pickpocket cases the immediate act which the defendant had 
in contemplation was an act whicli if it could have been carried out 
would have been criminal, whereas in the present case the immediate 
act which the defendant had in contemplation (to wit, the purchase of 
the goods which were brought to his place for sale) could not have been 
criminal under the statute even if the purchase had been completed, 
because the goods had not in fact been stolen, but were at the time 
when they were offered to him in the custody and under the contr<d 
of the true owners. 



114 PEOPLE V. JAFFB. [CHAP. II. 

If all which an accused person intends to do would, if done, consti- 
tute no crime it cannot be a crime to attempt to do with the same pur- 
pose a part of the thing intended. (1 Bishop's Crim. Law [7th ed.], 
sec. 747.) Tl;Lecrime_QL-fflhieh- the Jnfei >d«bBt-waa_convieted necessa- 



rily consis^of thxca- filements : first, the act; second, the int ent; ami 

1feTrd rTEe"""knowledge of an existing mnditinn. 'mere was prqpf 

t^n'l'rg <^" ^otoKiigij tw/. nf thpca plpryiP nts. the first and second, but 



nobe to estiMsirthe existence of t he third. This was knowledge of 
tBe stolen character of the property sougnt to be acquired. There 
could be no such knowledge. The defendant could not know that the 
property possessed the character of stolen property when it had not in 
fact been acquired by theft. 

The language used by Rcgek, C. J., in People v. Moran (123 N. Y. 
254), quoted with approval by Earl, J., in People v. Gardner (144 
N. Y. 119), to the effect that " the question whether an attempt to com- 
mit a crime has been made is determinable solely by the condition of 
the actorJs mind and his conduct in the attempted consummation of 
his design," although accurate in those cases has no application to a 
case like this, where, if the accused had completed the act which he 
attempted to do, he would not be guilty of a criminal offence, A partic- 
i^)aT beliq f t^annnt. m^lro that ti firimf wjvHi i^ not SO in the absence of 
such be lief. Take, for example, the caseoTS ^uuiig mau vvljuaCt empts 
10 VoteTand succeeds in casting his vote under the belief that he is but 
twenty j-ears of age, when he is in fact over twenty-one and a qualified 
voter. His intent to commit a crime, and his belief that he was com- 
mitting a crime, would not make him guilty of any offence under these 
circumstances, although the moral turpitude of the transaction on his 
part would be just as great as it would if he were in fact under age. So, 
also, in the case of a prosecution under the statute of this state, which 
makes it rape in the second degree for a man to perpetrate an act of 
sexual intercourse with a female not his wife under the age of eighteen 
3-ears. There could be no conviction if it was established upon the 
trial that the female was in fact over the age of eighteen years, although 
the defendant believed her to be younger and intended to commit the 
crime. No matter how reprehensible would be his act in morals, it would 
not be the act forbidden by this particular statute. " If what a man 
contemplates doing would not be in law a crime, he could not be said 
in point of law to intend to commit the crime. If he thinks his act 
will be a crime, this is a mere mistake of his understanding where the 
law holds it not to be such, his real intent being to do a particular 
thing. If the thing is not a crime he does not intend to commit one, 
whatever he may erroneously suppose." (1 Bishop's Crim. Law [7th 
ed.,J sec. 742.) 

The judgment of the Appellate Division of the Court of General 
Sessions must be reversed and the defendant discharged upon this in- 
dictment, as it is manifest that no conviction can be had thereunder. 
This discharge, however, in no wise affects the right to prosecute the 



SECT. IV.J UNITED STATES V. STEPHENS. 115 

defendant for other offences of a like character, concerning which 
there is some proof in the record, but which were not charged in the 
present indictment. 

Chase, J. (dissenting). I dissent. Defendant having with knowl- 
edge repeatedly received goods stolen from a dry goods firm by one of 
its employees, suggested to the employee that a certain specified 
kind of cloth be taken, he was told by the employee that that particular 
kind of cloth was not kept on his floor, and he then said that he would 
take a roll of a certain Italian cloth. The employee then stole a roll 
of the Italian cloth and carried it away, but left it iji another store where 
he could subsequently get it for delivery to the defendant. Before it 
was actually delivered to the defendant the employers discovered that 
the employee had been stealing from them, and they accused him of 
the thefts. The employee then confessed his guilt, and told them of 
the piece of cloth that had been stolen for the defendant, but had not 
actually been delivered to him. The roll of cloth so stolen was then 
taken by another employee of the firm, and it was arranged at the police 
headquarters that the employee who had taken the cloth should deliver 
it to the defendant, which he did, and the defendant paid the employee 
about one-half the value thereof. The defendant was then arrested and 
this indictment was thereafter found against him. That the defendant 
intended to commit a crime is undisputed. I think the record shows an 
attempt to commit the crime of criminally receiving property as defined 
in sections 550 and 34 of the Penal Code, within the decisions of this 
court in People v. Moran (123 N. Y. 254) and People v. Gardner (144 
N. Y. 119). 

CuLLEN, C. J., Gray, Edward T. Baetlett, Vann and Werner, 
JJ., concur with Willaed Bartlett, J, ; Chase, J., dissents in 
memorandum. 

Judgment of conviction reversed, etc.^ 



UNITED STATES v. STEPHENS. 
Circuit Court of United States, District of Oregon. 1882. 

[Reported 8 Sawi/er, 116.1 

Deady, J." On March 30, 1882, an information was filed by the 
district attorney, accusing the defendant, b}' the first count, of the 
crime of introducing spirituous liquors into the district of Alaska, con- 
trary to law ; and, by the second count, of the crime of " attempting " 

1 See Marley v. State, 58 N. J. L. 207. — Ed. 
* Part of the opinion only is printed. — Ed. 



116 UNITED STATES V. STEPHENS, [CHAP. II. 

to SO introduce such liquors into said district.^ The defendant de- 
murs to the information because it does not state facts sufficient to 
constitute a crime. 

Upon the argument of the demurrer it was abandoned as to the first 
count, and insisted upon as to the second. This count alleges that on 
July 14, 1879, the defendant, being in the district of Alaska, wrote and 
transmitted a letter to a certain firm in San Francisco, California, 
wherein and whereby he requested said firm to ship and send to him at 
Fort Wrangel, in said district, one hundred gallons of whiskey ; the 
defendant then welLknowing that said firm were then wholesale dealers 
in spirituous liquors, and owned and possessed said one hundred gallons 
of whiskey ; " and he thereby contriving and intending to introduce the 
said one hundred gallons of whiskey into the said district of Alaska." 

There are a class of acts which may be fairly said to be done in pur- 
suance of or in combination with an intent to commit a crime, but are 
not, in a legal sense, a part of it, and therefore do not with such intent 
constitute an indictable attempt ; for instance, the purchase of a gun 
with a design to commit murder, or the purchase of poison with the 
same intent. These are considered in the nature of preliminary prepara- 
tions, — conditions, not causes, — and although coexistent with a guilty 
intent, are indifferent in their character, and do not advance the con. 
duct of the party beyond the sphere of mere intent. They are, it is 
true, the necessary conditions without which the shooting or poisoning 
could not take place, but they are not, in tlie eye of the law, the cause 
of either. 1 Whart. C. L., sees. 178, 181 ; 1 Bish. C. L., sec. 668 et 
seq.; The People v. Murraj-, 14 Cal. 160. 

Dr. Wharton says (supra, sec. 181) : "To make the act an indict- 
able attempt, it must be a cause as distinguished from a condition ; 
and it must go bo far that it would result in the crime unless frustrated 
by extraneous circumstances." Bishop says (supra, sec. 669) : "It is 
plain that if a man who has a wicked purpose in his heart does some- 
thing entirely foreign in its nature from that purpose, he does not com- 
mit a criminal attempt to do the thing -proposed. On the other hand, 
if he does what is exactly adapted to accomplish the evil meant, yet 
proceeds not far enough in the doing for the cognizance of the law, he 
still escapes punishment. Again, if he does a thing not completelj', as 
the result discloses, adapted to accomplish the wrong, he may under 
some circumstances be punishable, while under other circumstances he 
may escape. And the difficulty is not a small one, to lay down rules 
readily applied, which shall guide the practitioner in respect to the cir- 
cumstances in which the criminal attempt is sufficient." 

In The People v. Murray, supra, the defendant was indicted for an 
attempt to contract an incestuous marriage, and was found guilt}'. 
From the evidence it appeared that he intended to contract such mar- 
riage, that he eloped with his niece for that purpose, and requested a 

1 This was made criminal by Act of March 3, 1873 (17 Stat, at L. 530). — Ed. 



SECT. IV.] UNITED STATES V. STEPHENS. 117 

third person to get a magistrate to perform the ceremonj'. Upon an 
appeal the judgment was reversed. Chief Justice Field, delivering tlie 
opinion of the court, said: " It (the evidence) shows very clearlj- the 
intention of the defendant ; but something more than mere intention is 
Tiecessary to constitute the offence charged. Between preparation for 
the attempt and the attempt itself, there is a wide difference. The 
preparation consists in devising or arranging the means or measures 
necessary for the commission of the offence ; the attempt is the direct 
movement towards the commission after the preparations are made 
. . . ; but until the ofHcer was engaged, and the parties stood before 
him, ready to take the vows appropriate to the contract of marriage, it 
cannot be said, in strictness, that the attempt was made. The attempt 
contemplated by the statute must be manifested by acts which would 
end in the consummation of the particular offence, but for the interven- 
tion of circumstances independent of the will of the party." 

In the case under consideration, to constitute the attempt charged in i 
the information there must have been an intent to commit the crime of j 
introducing spirituous liquors into Alaska, combined with an act done , 
in pursuance of such intention that apparently-, in the usual course of , 
events, would have resulted in such introduction, unless interrupted bj' J 
extraneous circumstances, but which actually fell short of such result. 1 

But it does not appear that anything was done by the defendant 
towards the commission of the intended crime of introducing spirituous 
liquors into Alaska, but to offer or attempt to purchase the same in 
San Francisco. The written order sent there by the defendant was, in 
effect, nothing more or less than an offer by him to purchase the one 
hundred gallons of whiskey ; and it will simplify the case, to regard 
him as being present at the house of the San Francisco firm, at the 
time his order reached them, seeking to purchase the liquor with the 
intent of committing the crime of introducing the same into Alaska. 

But the case made by the information stops here. It does not show 
that he bought any liquor. "Whether he changed his mind, and coun- 
termanded the order before the delivery of the goods, or whethet' the 
firm refused to deal with him, does not appear. 

Now, an offer to pu rchase whiskey, with th e intent to ship it to 
Alaska, is, in any vie w of the matter, a m ere act ot prepara tion, of 
'- which_ th e law takes no""c0 ^uizauuu. — lArsTHe" matter then stood, it was 
impossible for the defendaW>4;Q^ attempt to introduce this liquor into 
Alaska, because he did not own or control it. It was simply an attempt 
to purchase, — an act harmless and indifferent in itself, whatever the 
purpose with which it was done. 

But suppose the defendant had gone further, and actually succeeded 
in purchasing the liquor, wherein would the case differ from that of the 
person who bought the gun or poison with intent to commit murder, 
but did no subsequent act in execution of such purpose? In all essen- 
tials they are the same. 

A purchase of spirituous liquor at San Francisco or Portland, either 



118 GLOVER V. COMMONWEALTH. [CHAP. II, 

in person or by written order or application, with intent to commit a 
crime witii ttie same, — as to dispose of it at retail without a license, or 
to a minor, or to introduc e it into Alasl;a, — is merely a orenajatorv 
> act,-TTTri4 ffnrnntin -4ts--T;tIaracter. o fvVluch thti TawT-tec king the omni- 
science of J^fitVi "^"""ff t take coa;nizan ce. 

At what period of the transaction tlie shipper of liquor to Alaska is 
guilty of an attempt to introduce the same there, is not very easily 
determined. Certainly the liquor must first be purchased — obtained 
in some way — and started for its illegal destination. But it is doubt- 
ful whethe) the attempt, or the act necessary to constitute it, can be 
commiti.ed until the liquor is taken so near to some point or place of 
" the mainland, islands, or waters" of Alaska as to render it conven- 
ient to introduce it from there, or to make it manifest that such was the 
present purpose of the parties concerned. But this is a mere sug- 
gestion ; and each case must be determined upon its own circumstances. 

The demurrer is sustained to the second count, and overruled as to 
the first. 



GLOVER V. COMMONWEALTH. 

SUPBEME CODBT OF APPEALS OF VIRGINIA. 1889. 
[Reported 86 Virginia, 382.] 

Lewis, P., delivered the opinion of the court. 

Among the exceptions taken by the prisoner at the trial was one to 
the refusal of the court to instruct the jurj' as follows: "If the jury 
believe from the evidence that the prisoner at the bar intended to com- 
mit a rape on the prosecutrix, Berta Wright, but before the act was 
finally executed, he voluntarily and freely abandoned it, they are to 
find a verdict of not guilty." ^ 

This exception is not well taken. To have given the instruction 
would have been equivalent to telling the jury that upon an indictment 
for rape, the accused cannot be legally convicted of an attempt to com- 
mit a rape, which is not the law. The court, therefore, did not err in 
refusing to give it, nor did it err in subsequently instructing the jury, 
as in effect it did, that upon an indictment for rape, the accused may 
be found guilty of an attempt to commit a rape, which is in accordance 
with the law in this State. Givens v. Commonwealth, 29 Gratt. 830 ; 
Mings V. Same, 85 Va. 638. Indeed, the statute, now brought into 
section 4044 of the Code, expressly enacts that " on an indictment for 
felony, the jury may find the accused not guilty of the felony, but guilty 
of an attempt to commit such felony ; and a general verdict of not 
guilty upon such indictment shall be a bar to a subsequent prosecution 
for an attempt to commit such felony." 

» Only so much of the opinion as refers to this exception Is printed. 



SECT. IV.] COMMONWEALTH V. KENNEDY. 119 

Au attempt in criminal law is an apparent unfinished crime, and 
heutie is compounded of two elements, tiz. : (1) The intent to commit a 
crime ; and (2) a direct act done towards its commission, but falling 
short of the execution of the ultimate design. It need not, therefore, 
be the last proximate act to the consummation of the crime in contem- 
plation, but is sufficient if it be an act apparently adapted to produce 
the result intended. It must be something more than mere prepara- 
tion. Uhl's Case, 6 Gratt. 706 ; Hicks' Case, 86 Va. 223. 

Hence, when the prisoner took the prosecutrix into the stable, and 
there did the acts above mentioned, the attempt to commit a rape was 
complete ; for there was the unlawful intent accompanied by acts done 
towards the commission of the intended crime, but falling short of its 
commission. Indeed, it is not denied that there was such attempt, but 
it is contended — and such was the main defence at the trial — that the 
subsequent voluntary abandonment of the criminal purpose cleansed 
the prisoner of all crime, so far as the attempt was concerned. But 
this is a mistaken view. For, on the contrary, itJS-iL-Cttlerftninded ih 
reas on and supported by authority, that if n mn i n rcoolvoo o a.. a crim inal 

— ■^Snterprise, and proceeds so far in it that his ac^tarnnw iits < i iml inti- 

"a^lti alL btlipL, iL does not cease to pe sucn , tnough h e voluntarily aban- 
dons the evil purpose. 

Ill Lywia v. The State, 35 Ala. 380, which was an indictment for an 
attempt to commit a rape, it was ruled by the Supreme Court of Alabama 
that if the attempt was in fact made, and had progressed far enough to 
put the prosecutrix in terror and render it necessary- for her to save 
herself from the consummation of the attempted outrage by flight, then 
the attempt was complete, though the prisoner had not in fact touched 
her ; and that an after-abandonment by the prisoner of his wicked pur- 
pose could not purge the crime. And there are man^' other authorities 
to the same effect. See 1 Bish. Grim. Law (6th ed.), sec. 732, and 
cases cited. 



\ 



COMMONWEALTH v. KENNEDY. 

Sdpreme Judicial Court of Massachusetts. 1897. 

[Reported 170 Mass 18.] 

Holmes, J.^ The first count is for mingling poison with tea, with 
intent to kill one Albert F. Learoyd. Pub. Sts. c. 202, § 32. The 
second count is for an attempt to commit murder by poisoning. Pub. 
Sts. c. 202, § 21. Whether the first count includes the matter of the 
second, with, the eflfect that, even if the motion to quash the second 
count should have been granted, the verdict as rendered would stand 
on the first count (Commonwealth v. Nichols, 134 Mass. 531, 536, 
537), need not be decided, as we are of opinion that the motion to 
quash properly was overruled. 

1 Only so much of the opinion as discusses the law of attempt is given. — Ed. 



120 COMMONWEALTH V. KENNEDY. [cHAP. II. 

The second count alleges in substance that the defendant feloniously, 
wilfully, and maliciously attempted to murder Learoyd by placing a 
quantity of deadly poison known as "rough on rats," known to the 
defendant to be a deadly poison, upon, and causing it to adhere to the 
under side of the crossbar of a cup of Learoyd's known as a mustache 
cup, the cup being then empty, with the intent that Learoyd should 
thereafter use the cup for drinking while the poison was there, and 
should swallow the poison. The motion to quash was argued largely 
on the strength of some cases as to what constitutes an " administer- 
ing" of poison, which have no apphcation, but the argument also 
touched another question, which alwajs is present in cases of attempts, 
and which requires a few words, namel3', how nearly the overt acts 
alleged approached to the achievement of the substantive crime 
attempted. 

Notwithstanding Pub. Sts. c. 210, § 8, we assume that an act may 
be done which is expected and intended to accomplish a crime, which is 
not near enough to the result to constitute an attempt to commit it, as 
in the classic instance of shooting at a post supposed to be a man. As 
th e aim of the liw i a nnt t-t punif'' °''"S, but is to prevent ppi tain fy tprT* 
nal results, the act done must come prettj' near to accomplishing that 

"v TeSult before the law wiirrn^t^w^ ^t , P"t, rm t,h.e - Mll ii i l i .ii ii lj i i K ' ly pptivp 

of the statute, it is not necessary that the act should be such as inevit- 
ably to accomplish the crime bj' the operation of natural forces, but for 
some casual and unexpected interference. It is none the less an 
attempt to shoot a man that the pistol which is fired at his head is not 
aimed straight, and therefore in the course of nature cannot hit him. 
Usually acts which are expected to bring about the end without further 
interference on the part of the criminal are near enough, unless the 
expectation is very absurd. In this case the acts are alleged to have 
been done with intent that Learoyd should swallow the poison, and, by 
implication, with intent to kill him. See Commonwealth v. Adams, 
127 Mass, 15, 17. Intent imports contemplation, and more or less 
expectation, of the intended end as the result of the act alleged. If it 
appeared in the count, as it did in the evidence, that the habits of 
Learoyd and the other circumstances were such that the defendant's 
expectation that he would use the cup and swallow the poison was well 
grounded, there could be no doubt that the defendant's acts were near 
enough to the intended swallowing of the poison, and, if the dose was 
large enough to kill, that they were near enough to the accomplishment 
of the murder. But the grounds of the defendant's expectation are 
not alleged, and the strongest argument for the defence, as it seems to 
us, would be that, so far as this count goes, his expectation may have 
been unfounded and unreasonable. But in view of the nature of the 
crime and the ordinary course of events, we are of opinion tliat enough 
is alleged when the defendant's intent is shown. The cup belonged to 
Learoyd, and the defendant expected that he would use it. To allow 
him immunity, on the ground that this part of his expectation was ill 



SECT. IV.] COMMONWEALTH V. KENNEDY. 121 

grounded, ■would be as unreasonable as to let a culprit off because he 
was not warranted in thinking that his pistol was pointed at the man 
he tried to shoot. A more important point is that it is not alleged in 
terms that the dose was large enough to kill, unless we take judicial 
notice of the probable effect of a teaspoonf ul of " rough on rats " ; and 
this may be likened to the case of firing a pistol supposed to be loaded 
with ball, but in fact not so, or to administering an innocent substance 
supposing it to be poison. State v. S wails, 8 Ind. 524, and note. 
State V. Clarissa, 11 Ala. 57. There is a difference between the case 
of an attempt and a murder. In the latter case the event shows the 
dose to have been sufficient, without an express allegation. But we 
are of opinion that this objection cannot be maintained. Every ques- 
tion of proximity must be determined by its own circumstances, and 
analogy is too imperfect to give much help. Any unlawful application 
of poison is an evil which threatens death, according to common appre- 
hension, and the gravity of the crime, the uncertainty of the result, 
and the seriousness of the apprehension, coupled with the great harm 
likely to result from poison even if not enough to kill, .would warra nt 
holding the liability for an attempt to begin at a point more remofe 
Pi'ArnjiiKpnssihilii^^ w hatjs ej:wul.ed tAiiiii uimh t'bel 

•t he case with ligEtercri mes. But analogy does not require this con-V. 
sideration. The ease citen~9,s to firing a pistol not loaded with ball has 
been qualified at least by a later decision, Kunkle v. State 32 Ind. 
220, 229, a case of shooting with shot too small to kill. And even in 
less serious crimes (especially in view of Pub. Sts. c. 210, § 8), im- 
possibility of achievement is not necessarily a defence, for instance, in 
an attempt to procure an abortion upon a woman not pregnant. 
Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Tibbetts, 
157 Mass. 519. So in an attempt to pick a pocket which is empt}'. 
Commonwealth v. McDonald, 5 Cush. 365. See also Commonwealth 
V. Jacobs, 9 Allen, 274. In the case of crimes exceptionally dealt with 
or greatly feared, acts have been punished which were not even ex- 
pected to effect the substantive evil unless followed by other criminal , 
acts ; e. g., in the case of treason, Foster, 196 ; King v. Cowper, 5 Mod. 
206 ; or in that of pursuit by a negro, with intent to commit rape. 
Lewis V. State, 35 Ala. 380. Compare Regina v. Eagleton, Dears. 
C. C. 515, 538 ; S. C. a Cox, C. C. 559, 571. A familiar statutory 
illustration of this class is to be found in the enactments with regard to 
having counterfeit bills in one's possession with intent to pass them. 
Pub. Sts. c. 204, § 8 (see Regina v. Roberts, Dears. C. C. 639, 550, 
551), and one which is interesting historicall}' in the English statutes 
intended to keep secret the machinery used in modern manufacture. 
Sts. 14 Geo. III. c. 71, § 5 ; 21 Geo. III. c. 37, § 6. The general pro- 
vision of Pub. Sts. c. 210, § 8, already referred to, long has been on 
the books. A case having some bearing on the present is State v. 
Glover, 27 S. C. 602. For these reasons, we are of opinion that the 
motion to quash the second count properly- was overruled. 



122 COMMONWEALTH V. PEASLEE. [CHAP. IL 

COMMONWEALTH v. PEASLEE. 
Supreme Judicial Court of Massachusetts. 1901. 

[Reported 177 Mass. 267.] 

Holmes, C. J. This is an indictment for an attepapt to burn a building 
and certain goods tiierein, with intent to injure the insurers of the same. 
Pub. Sts. c. 210, § 8. The substantive offence alleged to have been 
attempted is punished by Pub. Sts. c. 203, § 7. The defence is that 
the overt acts alleged and proved do not amount to an offence. It 
was raised by a motion to quash and also by a request to the judge to 
direct a verdict for the defendant. We will consider the case in the 
first place upon the evidence, apart from any question of pleading, and 
afterwards will take it up in connection with the indictment as actually 
drawn. 

The evidence was that the defendant had constructed and arranged 
combustibles in the building in such a way that they were xeady to be 
lighted, and if lighted would have set fire to the building and its con- 
tents. To be exact, the plan would have required a candle which was 
standing on a shelf six feet away to be placed on a piece of wood in a 
pan of turpentine, and lighted. The defendant offered to pay a young 
man in his employment if he would go to the building, seemingl3' some 
miles from the place of the dialogue, and carry out the plan. This was 
refused. Later the defendant and the j'oung man drove toward the 
buifding, but when within a^quaxtef- t c f a iiiile -tlie__defendaPt-6 aid thafr ^ 
he had ch anged hlb mind "and drove_away. This is as near as he ever 
came to accomplishing what ne had^in contemplation. 

The question on the evidence, more precisely stated, is whether the 
defendant's acts come near enough to the accomplishment of the sub- 
stantive offence to be punishable. The statute does not punish every 
(act done toward the commission of a crime, but only such acts done in 
an attempt to commit it. The most common types of an attempt are 
either an act which is intended to bring about the substantive crime 
and which sets in motion natural forces that would bring it about in 
the expected course of events but for an unforeseen interruption, as in 
this case if the candle had been set in its place and lighted but had 
been put out by the police, or an act which is intended to bring about 
the substantive crime and would bring it about but for a mistake of 
judgment in a matter of nice estimate or experiment, as when a pistol 
is fired at a man but misses him, or when one tries to pick a pocket 
which turns out to be empty. In either ease the would-be criminal has 
done his last act. 

Obviously new considerations come in when further acts on the pan 
of the person who has taken the first steps are necessary before the 
substantive crime can come to pass. In this class of cases there is 
still a chance that the would-be criminal may change his mind. In 



■SECT. IV.J COMMONWEALTH V. PEASLEE. 123 

strict ness, such fi rst, atpps fnnnnt. hp flpsnri hed as an aUfimpt., hsfiaiisp 

tfe rword SUgge p ta an ant gppminfrly anffifipnt. irf fl/'n ompHgh thfi^ find. 

<arid has been supposed to have no other meanin g. People v. Murray, 
T4 "(jai. io9, ibu. ^That an overt act, although coupled with an 
intent to commit the crime, commonly is not punishable if further acts 
are contemplated as needful, is expressed in the familiar rule that 
preparation is not an attempt. But some preparation ma}' amount to 
an attempt. It is a question of degree. If the preparation_CQm£s-¥«'ry 
near to t.hp afimmplishmpni. nf t.hp no±. the intent to complete it renders 
the cri me so probable that the act will be a misdemeanor, although 
there is still a locus peni tp.n.Um in t.hp nppH nf a fur ther exertion of tlie 
will t o complete thp "'•''"'? As was observed in a recent case, the 
degree of proximity held sufficient may vary with circumstances, includ- 
ing among other things the apprehension which the particular crime is 
calculated to excite. Commonwealth u. Kennedy, 170 Mass. 18, 22. 
(See also Commonwealth v. Willard, 22 Pick. 476.) A few instances 
of liability of this sort are mentioned on the page cited. 

As a further illustration, when the servant of a contractor had de- 
livered short rations of meat by the help of a false weight which he had 
substituted for the true one, intending to steal the meat left over, it was 
held hj four judges, two of whom were Chief Justice Erie and Mr. 
Justice Blackburn, that he could be convicted of an attempt to steal. 
Regina v. Cheeseman, L. & C. 140 ; S. C. 10 W. R. 225. So lighting 
a match with intent to set flre to a haystack, although the prisoner 
desisted on discovering that he was watched. Regina v. Taylor, 1 
F. & F. 511. So getting into a stall with a poisoned potato, intending 
to give it to a horse there, which the prisoner was prevented from doing 
by his arrest. Commonwealth v. McLaughlin, 105 Mass. 460. See 
Clark V. State, 86 Tenn. 511. So in this Commonwealth it was held 
criminal to let a house to a woman of ill fame with intent that it should., 
be used for purposes of prostitution, although it would seem that the 
finding of intent meant only knowledge of the intent of the lessee. 
Commonwealth v. Harrington, 3 Pick. 26. See Commonwealth v, 
Willard, 22 Pick. 476, 478. Compare Broekway v. People, 2 Hill, 
558, 562. The same has been held as to paying a man to burn a barn, 
-whether well laid as an attempt or more properly as soliciting to com- 
mit a felony. Commonwealth v. Flagg, 135 Mass. 545, 549. State v. 
Bowers, 35 So. Car. 262. Compare Regina v. "Williams, 1 C. & K. 
589 -,8.0.1 Denison, 39. McDade v. People, 29 Mich. 50, 56. 
Stabler v. Commonwealth, 95 Penn. St. 318. Hicks v. Commonwealth, 
86 Va. 223. 

On the other hand, making up a false invoice at the place of expor- 
tation with intent to defraud the revenue is not an offence if not followed 
up by using it or attempting to use it. United States v. Twenty-eight 
Packages, Gilpin, 306, 324. United States v. Riddle, 5 Cranch, 311. 
So in People v. Murray, 14 Cal. 159, the defendant's elopement with 
his niece and his requesting a third person to bring a magistrate to 



124 COMMONWEALTH V. PEASLEB. [CHAP. II. 

perform the marriage ceremony, was held not to amount to an attempt 
to contract the marriage. But the ground on which this last decision 
was put clearly was too broad. And however it may be at common 
law, under a statute like ours punishing one who attempts to commit a 
crime ' ' and in such attempt does any act towards the commission of 
such offence" (Pub. Sts. c. 210, § 8), it seems to be settled elsewhere 
that the defendant could be convicted on evidence like the present. 
People V. Bush, 4 Hill, 133, 134. McDermott v. People, 5 Parker Cr. 
Rep. 102. Griffin v. State, 26 Ga. 493. State v. Hayes, 78 Mo. 307, 
316. See Commonwealth v. Willard, 22 Pick. 476. People v. Bush is 
distinguished in Stabler v. Commonwealth as a decision upon the 
words quoted. 95 Penn. St. 322. 

Under the cases last cited we assume that there was evidence of a 
crime and perhaps of an attempt, — the latter question we do not 
decide. Nevertheless, on the pleadings a majority of the court is of 
opinion that the exceptions must be sustained. A mere collection and 
preparation of materials in a room for the purpose of setting fire to 
them, unaccompanied by any present intent to set the fire, would be 
too remote. If the accused intended to rely upon his own hands to the 
yud, BSmust be shown to have had a present intent to accomplish the 
crime without much delay, and to have had this intent at a time and place 
where he was able to carry it out. "We are not aware of any carefully 
considered case that has gone further than this. We assume without 
deciding that that is the meaning of the indictment, and it would have 
been proved if for instance the evidence had been that the defendant 
had been frightened by the police as he was about to light the candle. 
On the other hand, if the offence is to be made' out by showing a pre- 
paration of the room and a solicitation of some one else to set the fire, 
which solicitation if successful would have been the defendant's last 
^t, the-iiinlinitfitiinn must he Hillp ged as ""» "f ^^^^ rnrnt-|; on^^cj jt ^^s 
admissible in evidence on the pleadings as they stood to show the 
defendant's intent, but it could not be relied on as an overt act unless 
set out. The necessity that the overt acts should be alleged has been 
taken for granted in our practice and decisions (see e. g., Common- 
wealth V. Sherman, 105 Mass. 169; Commonwealth v. McLaughlin, 
105 Mass. 460, 463 ; Commonwealth v. Shedd, 140 Mass. 451, 453), 
and is expressed in the forms and directions for charging attempts 
appended to St. 1899, c. 409, § 28 and § 2. Commonwealth v. Clark, 
6 Gratt. 675. State v. Colvin, 90 No. Car. 717. The solicitations 
were alleged in McDermott v. People. In New York it was not neces- 
sary to lay the overt acts relied upon. Mackesey v. People, 6 Parker 
Cr. Rep. 114, 117, and New York cases supra. See 3 Encyc. PI. & 
Pr., " Attempts," 98. A valuable collection of authorities concerning 
the crime will be found under the same title in 3 Am. & Eng. Encyc. 
of Law (2d ed.). If the indictment had been properly drawn we have 
no question that the defendant might have been convicted. 

Eaxeptions sustained. 



SECT. IV. ] WALSH V. PEOPLE. 125 



WALSH V. PEOPLE. 
Sdpeeme Court of Illinois. 1872. 

[Reported 65 Illinois, 58.] 

Mr. Justice Thornton delivered the opinion of the court : — 

The defendant below was an alderaiaii of the Common Council of 
the city of Chicago. As such, he was indicted for a pro posa l, made 
by himself, to_r eceive a J mb^ to influence his action in the discharge 
of his duties. 

The indictment is, in form, an i ndictment at corn rnoTi law ; and it is 
conceded that the statute has not created such an offence against an 
alderman. Our criminal code has made it an offence to propose, or 
agree to receive, a bribe, on the part of certain officers ; but an alder- 
man is not, either in terms or by construction, included amongst them. 
Eev. Stat. 1845, p. 167, s. 87. 

It is contended that the act charged does not fall within any of the 
common law definitions of bribery ; that"ho precedent can be found 
for such an offence, and that, as propositions to receive bribes have 
probably often been made, and as no case can be found in which they 
were regarded as criminal, the conclusion must follow that the offence 
charged is no offence. 

The weakness of the conclusion is in the assumption of a premise 
which may or may not be true. This particular phase of depravity 
may never before have been exhibited ; and if it had been, a change 
might be so suddenly made, by an acceptance of the offer and a con- 
currence of the parties, as to constitute the offence of bribery, which 
consists in the receiving any undue reward to incline the party to act 
contrary to the known rules of honesty and integrity. 

But the character of a particular offence cannot fairly be determined 
from the fact that an offence exactly analogous has not been described 
in the books. We m ust test the criminality of the act by known prp - 
ciples of law. - 

At common law, bribery is a grave and serious offence against public 
justice ; and the attempt or offer to bribe is likewise criminal. 

A promise of money to a corporator, to vote for a mayor of a cor- 
poration, was punishable at common law. Kex v. Plympton, 2 Lord 
Raym'. 1377. 

The attempt to bribe a privy councillor, to procure an office, was an 
offence at common law. Res v. Vaughah, 4 Burr. 2494. In that case. 
Lord Mansfield said: "Wherever it is a crime to talce, it is a crime 
to give. They are reciprocal. And in many cases, especially in bribery 
at elections to parliament, the attempt is a crime. It is complete on 
his side who offers it." 

Why is the mere unsuccessful attempt to bribe criminal? The offi- 
cer refuses to take the offered reward, and his integrity is untouched, 



126 WALSH V. PEOPLE. [CIIAP. II. 

his conduct uninfluenced by it. The reason for the law is plain. The 

! offer is a sore temptation to the weak or the depraved. It tends to- 

' corrupt ; and as the law abhors the least tendency to corruption, it 

punishes the act which is calculated to debase, and which may affect- 

' prejudicially the morals of the community. 

The attempt to bribe is, then, at common law a misdemeanor ; and 
the person making the offer is liable to indictment and punishment. 

What are misdemeanors at common law? Wharton, in his work on 
criminal law, p. 74, says : " Misdemeanors comprise all offences, lower 
than felonies, which may be the subject of jndictment. They are divided, 
into two classes : first, such as are mala in se, or penal at common 
law ; and second!}', such as are mala proJiibita, or penal by statute. 
Whatever, under the first class, mischievously affects the person or 
property of another, or openly outrages decency, or disturbs public 
order, or is injurious to public morals, or is a breach of oflBcial duty,, 
when done corruptly, is the subject of indictment." 

In the case of The King v. Higgins, 2 East, 5, the defendant was- 
indicted for soliciting and inciting a servant to steal his master's chat- 
tels. There was no proof of any overt act towards carrying the intent 
into execution, and it was argued, in behalf of the prisoner, that the 
solicitation was a mere fruitless, ineffectual temptation, — a mere wish 
or desire. 

It was held, by all the judges, that the soliciting was a misdemeanor, 
though the indictment contained no charge that the servant stole the 
goods, nor that any other act was done except the soliciting. 

Separate opinions were delivered by all the judges. 

Lord Kenton said the solicitation was an act, and it would be a slan- 
der upon the law to suppose that such an offence was not indictable. 

Gross, J., said an attempt to commit a misdemeanor was, in itself,, 
a misdemeanor. The gist of the offence is the incitement. 

Lawrence, J., said: "All offences of a public nature, that is, all 
such acts or attempts as tend to the prejudice of the community, are 
indictable ; " and that the mere soliciting the servant to steal was an 
attempt or endeavor to commit a crime. 

Le Blanc, J., said that the inciting of another, by whatever means 
it is attempted, is an act done ; and if the act is done with a criminal 
intent, it is punishable by indictment. 

An attempt to commit an offence or to solicit its commission is at 
Jcommon law -punishable by indictment. 1 Hawk. P. C. 66 ; Whar. Cr. 
'Law, 78 and 872 ; 1 Russ. on Cr. 49. 

While we are not disposed to concur with Wharton, to the full extent, 
m the language quoted, that every act which might be supposed, accord- 
ing to the stern ethics of some persons, to be injurious to the public 
morals, to be a misdemeanor, yet we are of opinion that it is a mis- 
demeanor to propose to reteive a bribe. It must be regarded as an 
inciting to offer one, and a solicitation to commit an offence. This, at 
common law, is a misdemeanor. Inciting another to the commission 



SECT. IV.] COMMONWEALTH V. KANDOLPH. 127 

of any indictable offrnftfli tlioiifrh w ithout success, is a misdemeano r. 
3 (Jhitty (Jr. Law, 994 ; 1 Russ. on Cr. 49, Gartwright's case ; Euss. 
and R. C. C. 107, note b ; Rex v. Iliggius, 2 East, supra. 

As we liave seen, the mere offer to bribe, though it may be rejected, 
is an offence ; and the party who makes the offer is amenable to indict- 
ment and punishment. The offer amounts to no more than a proposal 
to give a bribe ; it is but a solicitation to a person to take one. The 
distinction between an offer to bribe and a proposal to receive one, is 
exceedingly nice. The difference is wholly ideal. If one man attempt 
to bribe an officer, and influence him, to his own degradation and to 
the detriment of the public, and fail in his purpose, is he more guilty 
than the officer, who is willing to make sale of his integrity, debase 
himself, and who solicits to be purchased, to induce a discharge of his 
duties? The prejudicial effects upon society are, at least, as great in 
the one case as in the other ; the tendency to corruption is as potent ; 
and when the officer makes the proposal, he is not only degraded, but 
the public service suffers thereby. 

According to the well-established principles of the common lawj^th 
prop osal to receive' the bribe was an act which tended to the prejii - 
"gice of the nnm mnni't.y, greatly outraged public decency, was in the 
highest degree injurious to the public morals, was a gross breach of 
official duty, and must therefore be regarded as a misdemeanor, for 
which the party is liable to indictment. 

It is an offence more serious and corrupting in its tendencies than 
an ineffectual attempt to bribe. In the one case the officer spurns the 
temptation, and maintains his purity and integrity ; in the other, he 
manifests a depravity and dishonesty existing in himself, which, when 
developed by the proposal to take a bribe, if done with a corrupt intent, 
should be punished ; and it would be a slander upon the law to suppose 
that such conduct cannot be checked by appropriate punishment. 

In holding that the act charged is indictable, we are not drifting 
"into judicial legislation, but are merely applying old and well-settled 
principles to a new state of facts. 




COMMONWEALTH v. RANDOLPH. 
Supreme Court of Pennsylvania. 1892. 

[Reported 146 Pennsylmnia, 83.] v/^'' *"' * ^ 

Per Curiam. The appellant was convicted in the court below upon 
an indictment in the first count of which it was charged that she, 
" Sarah A. McGinty, alias Sarah A. Randolph, . . . unlawfully, wick- 
edly, and maliciously did solicit and invite one Samuel Kissinger,; 
then and there being, and by the offer and promise of payment to said 
Samuel Kissinger of a large sum of money, to wit, one thousand dol- 
lars, which to him, the said Samuel Kissinger, she, the said Sarah A. 
McGinty, alias Sarah A. Randolph, then and there did propose, offer, 



/ 



128 COMMONWEALTH V. KANDOLPH. [CHAP. II. 

promise, and agree to pa}-, did incite and encourage Iiini, the said 
Samuel Kissinger, one William S. Foltz, a citizen of said countj-, in 
the peace of said commonwealth, feloniousl}' to kill, murder, and slaj-, 
contrary to the form of the act of general assembly in such case made 
and provided, and against the peace and dignity of the commonwealth 
of Pennsylvania." Upon the trial below the defendant moY cd to qua sh 
the indiefement upon the groun^ that J ' the sai^inrlictment d«esL_not 
charge in any count thereof anj' offence , either at coramonjjlff or by 
statetev^ The court below refused to quash the indictment ; an3 this 
"njling7 with the refusal of the court to arrest the judgment, is assigned 
as error. 

It may be conceded that there is no statute which meets this case, 
and, if the crime charged is not an offence at common law, the judgment 
must be reversed. What is a common-law offence? We endeavored 
to answer this question in Com. v. McHale, 97 Pa. 397, 410, in which 
we held that offences against the purity and fairness of elections were 
crimes at common law, and indictable as such. We there said : ' ' We 
are of opinion that all such crimes as especially affect public society 
are indictable at common law. T hejest is i^ nt whether precedentajign 
be found i n Jhe_ books, but whether they inj^urJQU sIy affect the public" 
_^licy_ _and__er!ftn"my-" Tested by this rule, we have no doubt that 
the solicitation to commit murder, accompanied by the offer of money 
for that purpose, is an offence at common law. 

It may be conceded that the mere intent to commit a crime, where 
such intent is undisclosed, and nothing done in pursuance of it, is not 
the subject of an indictment. But there was something more than an 
undisclosed intent in this case. There was the direct solicitation to 
commit a murder, and an offer of money as a reward for its commission. 
T his was an act done, — a s tep in the di rection of the_criiBe, — and 
ii;id the act been perpetrated the defendant would have been liable to 
punishment as an accessory to the murder. It needs no argument to 
show that such an act affects the public policy and economy in a serious 
manner. ^ 

Authorities in this State are very meagre. Smith v. Com., 54 Pa. 
209, decided that s olicitation to co mmit fornic ation grid ad nlt pry iff-n^t 
i ndictable. But fornication and a.dultp.r y are mere misdemeanors by 
our law, whereas murder isacapitaLfelOT,yI Stabler"*. Com., 94) Pa. 
818, decided lihuL the mere delivery of poison to a person, and solicit- 
ing him to place it in the spring of a certain party, is not " an attempt 
to administer poison," within the meaning of the eighty-second section 
of the Act of March 31, 1860, P. L. 403. In that case, however, the 
sixth count of the indictment charged that the defendant did "falsely 
and wickedly solicit and invite one John Neyer, a servant of the said 
Richard S. Waring, to administer a certain poison and noxious and 
dangerous substance, commonly called Paris green, to the said Richard 
F. Waring, and divers other persons, whose names are to the said 
inquest unknown, of the family of the said Richard F. Waiinu." etc. 



SECT. IV.] COMMONWEALTH V. RANDOLPH. 129 

The defendant was convicted upon this count, and while the judgment 
was reversed upon the first count charging " an attempt to administer 
poison," we sustained the conviction upon the sixth count ; Mekcur, J., 
saying: "The conduct of the plaintiff" in error, as testified to bj- the 
witness, undoubtedly shows an oflJ'ence for which an indictment will lie 
without any further act having been committed. He was rightly con- 
victed, therefore, on the sixth count." 

The authorities in England are very full upon this point. The lead- 
ing case is Rex v. Higgias, 2 East, 5. It is verj' similar to the case 
at bar, and it was squarelj- held that solicitation to commit a felony is 
a misdemeanor and indictable at common law. In that case it was said 
by Lord Kenton, C. J. : " But it is argued that a mere intent to com- 
mit evil is not indictable without an act done ; but is there not an act 
done, where it is charged that the defendant solicited another to commit 
a felony ? Xhe^solLcitation Js- an act, an d the answer given at the bar 
is decisive that iFwould be sufficient to^onsti tul e an ^vert ac t of high 
treason." We are not unmindful of the criticism of this case hy Chief 
Justice WooDWAKD in Smith v. Com., supra, but we do not think it 
affects the authority of that case. The point involved in Rex v. Hig- 
gins was not before the court in Smiths. Com., and could not have 
been and was not decided. It is true, this is made a statutory offence 
by St. 24 & 25 Vict. ; but, as is said by Mr. Russell in his work on 
Crimes (volume 1, p. 967), in commenting on this act: "As all the 
■crimes specified in this clause appear to be misdemeanors at common 
law, the effect of this clause is merely to alter the punishment of them." 
In other words, that statute is merely declaratory of the common law. 

Our best text-books sustain the doctrine of Rex v. Higgins. i^f 
the crime solicit ed, to be committed be not perpetrated, then the adv iser 
"c an^oLc-Jbe— iadicted for a misdemeano r." 1 Chit. Urim. Law, p. 
"554. See, also, 1 Archb. Crim. Pr. & PI. 19, and 1 Bish. Crim. Law, 
§ 768, where the learned author saj'S : "The law as adjudged holds, 
and has held from the beginning in all this class of cases, an indict- 
ment suflScient which simply charges that the defendant, at the time 
and place mentioned, falsely, wickedly, and unlawfully did solicit and 
incite a person named to commit the substantive offence, without any 
further specification of overt acts. It is vain, then, to say that mere 
solicitation, the mere entire thing which need be averred against a 
"defendant as the ground for his conviction, is no offence." We are of 
opinion the appellant was properly convicted, and the judgment is 
affirmed.^ 

1 See State v. Avery, 1 Conn. 266 ; Com. v. Flagg, 135 Ma,9s. 545. Cf. Coi v. 
People, 82 111. 191; Smith i». Com., 54 Pa. 209. —Ed. 



1'6Q STATE V. HUKLET. [CHA?, U 

STATE V. HURLEY. 

Supreme Court of Vermont. 1906. 

[Reported 79 Vt. 000.] 

MuNSONjJ. The respondent is informed against f or attempting t o 
>^roflhwj^vo;l_fho jpW in whif' h hp wfl" ""nf'""'^ -^y procuring to be de- 
■^livered intohis hands 12 steel hack saws, with an intent to break open 
the jail therewith. The state's evidence tended to show that, in pursu- 
atice of an arrangement between the respondent and one Tracy, a 
former inmate, Tracy attempted to get a bundle of hack saws to the 
respondent bj' throwing it to him as he sat behind the bars at an open 
window, and that the respondent reached through the bars and got the 
bundle into his hands, but was ordered at that moment by the jailer to 
drop it, and did so. 'Tht^Q]-\rt I'hargpA in . substance th atif the respon- 
dent arranged fnrjvmciirin g the saws and got them into his po ssession, 
with ail hitenTtolare ak open the jail for the purpose of escap ing, he 
was guil ty ot the otte nc!e_aILe§ed. The respondent demurred to "the in- 
formation, and excepted to the charge. Bishop defines a criminal at- 
tempt to be " an intent to do a particular criminal thing, with an act 
toward it falling short of the thing intended." 2 Cr. Law, § 728. 
The main difficulty in applying this definition lies in determining the 
relation which the act done must sustain to the completed oflence. 
That relation is more fully indicated in the following definition given 
by Stephen : " An attempt to commit a crime is an act done with intent 
to commit that crime, and forming part of a series of acts which would 
constitute its actual commission if it were not interrupted." Dig. Cr. 
Law, 33. All acts done in preparation are, in a sense, acts done toward 
the accomplishment of the thing contemplated. But most authorities 
certainly hold, and many of them state specifically, that the act must 
be something more than mere preparation. Acts of preparation, how- 
ever, may have such proximitj' to the place where the intended crime 
is to be committed, and such connection with a purpose of present ac- 
complishment, that they will amount to an attempt. See note to People 
V. Moran (N. Y.) 20 Am. St. Rep. 741 ; People v. Stiles, 75 Col. 570, 
17 Pac. 963 ; People v. Lawton, 56 Barb. (N. Y.) 126. 

Various rules have been formulated in elucidating this subject. 
Some acts tovi^ard the commission of the crime are too remote for the 
law to notice. The act need not be the one next preceding that needed 
to complete the crime. Preparations made at a distance from the 
place where the offence is to be committed are ordinarily too remote to 
satisfy the requirement. 1 Bish. Cr. Law, §§ 769, 762 (4) 763. The 
preparation must be such as would be likely to end, if not extraneously 
interrupted, in the consummation of the crime intended. 3 Am. & 
Ency. Law (2d ed.) 266, note 7. T he act must b e^ of such a character 
asto advance the conduct of the actor beyond the sphere of mere intent. 



SECT. IV.J STATE V. HURLEY. 131 

It must reac ] i _ f a r Bnnugh t o w4ird 8-<^Ti'> "fpafflBligh ^^Pt of the desired 
r esult to amount to the covc\ mp.r\o.pmpnt. nf fhg fv^pgnmrngHnn Hicks 
V. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Eep. 891. But after all 
that has been said, the application is difficult. One of the best known 
cases where acts of preparation were held insufficient is People v. 
Murray, 14 Cal. 159, which was an indictment for an attempt to con- 
tract an incestuous marriage. There the defendant had eloped with his 
niece with the avowed purpose of marrying her, and had taken measures 
to procure the attendance of a magistrate to perform tlie ceremonj'. 
In disposing of the case, Judge Field said: "Between preparations 
for the attempt and the attempt itself, there is a wide difference. The 
preparation consists in devising or arranging the means or measures 
necessary for the commission of the offence ; the attempt is the direct 
movement toward the commission after the preparations are made." 
Mr. Bishop thinks this case is near the dividing line, and doubts if it 
will be followed by all courts. 1 Cr. Law, § 763 (3.) Mr. Wharton 
considers the holding an undue extension of the doctrine that prelimi- 
nary preparations are insufficient. Cr. Law, 181, note. But the case 
has been cited with approval by courts of high standing. T he exact 
i n(jniry presented by the f -nqp bpfnyp na jg yybether the procurement o f 
the means of committing the offence is to he treated as a prepara tion 
Jor the attempt. o r_aS-iihn nttompt itnolf iln considering this question, it 
must be remembered that there are some acts, preparatory in their char- 
acter, which the law treats as substantive offences ; for instance, the 
procuring of tools for the purpose of counterfeiting, and of indecent 
prints with intent to publish them. Comments upon cases of this char- 
acter may lead to confusion if not correctly apprehended. Wharton, 
Cr. Law, § 180, and note 1. 

The case of Griffin v. The State, 26 Ga. 493, cited by the respon- 
dent, cannot be accepted as an authority in his favor. There the de- 
fendant was charged with attempting to break into a storehouse with 
intent to steal, by procuring an impression of the key to the lock and 
preparing from this impression a false key to fit the lock. The section 
of the Penal Code upon which the indictment was based provides for 
the indictment of any one who " shall attempt to commit an offence 
prohibited by law, and in such an attempt shall do any act toward the 
commission of such offence." The court considered that the General 
Assembly used the word "attempt" as synonymous with "intend," 
and that the object of the enactment was to punish " intents," if dem- 
onstrated by an act. The court cited Rex v. Sutton, 2 Str. 1074, as a 
strong authority in support of the indictment. There the prisoner was 
convicted for having in his possession iron stamps, with intent to im- 
press the sceptre on sixpences. This was not an indictment for any 
attempt, but for the offence of possessing tools for counterfeiting with 
intent to use them. The Georgia court, by its construction of the 
statute, relieved itself from the distinction between " attempts " and 
crimes of procuring or possessing with unlawful intent. 



132 , STATB V. HUELET. [CHAP.'II. 

The act in question here is the procuring by a prisoner of tools 
adapted to jail breaking. ^That act stands entirely unconnected with 
any further act loo king. Jo^tb eir-juseg It is true that the respondent 
■pr5cure3~them with the design of breaking jail. But he had not put 
that design into execution, and might never have done so. He had 
procured the means of making the attempt, but the attempt itself was 
still in abeyance. Its inauguration depended upon the choice of an 
occasion and a further resolve. That stage was never reached, and the 
procuring of the tools remained an isolated act. To constitute an 
attempt, a preparatory act of this nature must be connected with the 
accomplishment of the intended crime by something more than a 
general design. 

Exceptions sustained, judgment and verdict set aside, demurrer sus- 
tained, information held insufficient and quashed, and respondent 
discharged. 



SECT, v.] DOBBS'S CASE. 133 



SECTION V. 
A Specific Intent as Part of an Offence,. 

1 Hale P. C. 569. • [Arson] must be a wilful and malicious burning, 
otherwise it is not felony, but only a trespass ; and therefore if A. 
shoot unlawfully in a hand-gun, suppose it to be at the cattle or poul- 
try of B. and the fire thereof sets another's house on fire, this is not 
felony, for though the act he was doing were unlawful, yet he had no 
intention to burn the house thereby, against the opinion of Dalt. Cap. 
105 p. 270. 

But if A. have a malicious intent to burn the house of B., and in 
setting Are to it burns the house of B. and C. or the house of B. 
escapes bj' some accident, and the fire takes in the house of C. and 
burneth it, though A. did not intend to burn the house of C, yet in 
law it shall be said the malicious and wilful burning of the house of 
C. and he may be indicted for the malicious and wilful burning of the 
house of C. Co. P. C. p. 67. 



DOBBS'S CASE. 

Buckingham Assizes. 1770. 

[Reported 2 East, P. C. 513.] 

Joseph Dobbs was indicted for burglary in breaking and entering 
the stable of James Bayley, part of his dwelling-house, in the night, 
with a felonious intent to kill and destroy' a gelding of one A..B., there 
being. It appeared that the gelding wa's to have run for forty guineas, 
and that the prisoner cut the sinews of his fore-leg to prevent his run- 
ning, in consequence of which he died. 

Parker, C. B., ordered him to be acquitted ; for his intention was 
not to commit the felony, by killing and destroying the horse, but a 
trespass only to prevent his running ; and therefore no burglary. 

But the prisoner was again indicted for killing the horse, and 
capitally convicted. 



134 REX V. KELLY. [CHAP. II. 

REX V. BOYCE. 
Ceown Case Reserved. 1824. 

[Reported 1 Moody, 29.] 

The prisoner was tried before Thomas Denman, Esq., Common 
Serjeant at the Old Bailey Sessions, June, 1824, upon an indictment for 
feloniously cutting and maiming John Fishburn, with intent to murder, 
maim, and disable.' There was no count which charged an intent to 
prevent his lawful apprehension. 

The facts were these : 

The prisoner had, in the night time, broken into a shop in Fleet 
Market, and was there discovered by the prosecutor, who was a watch- 
man, at a quarter before five in the morning of the 11th of April, 1820. 
On the prosecutor entering the shop for the purpose of apprehending 
him, the prisoner struck him witli his fist, which blow the prosecutor 
returned. The prisoner then said, " I will serve you out — I will do 
for you ; '' and, taking up a crow-bar, struck the prosecutor with it 
two severe blows, one on the head, the other on the arm ; he then 
ran away, ordering the prosecutor to sit on a block in the shop, and 
threatening that it would be worse for him if he moved. 

The crow-bar was a sharp insti'ument, and the prosecutor was cut 
and maimed by the blows so given with it hy the prisoner. 

The prisoner was found guilty; and, on an answer to a question from 
the Common Serjeant, the jur}' said, "We find that he was there with 
intent to commit a robber}-, and that he cut and maimed the watchman 
with intent to disable him till he-CQuld eflfect his own escape." 



The Coftmon Serjeant reserved the above case for the consideration 
of the judges. 

In Trinity Term, 1824, all the judges (except Graham, B. and 
Garrow, B.) met, and considered this case, and held the conviction 
wrong, for, by the finding of the jury, the prisone r intended only to 
produce a tem porary di sability, till he co uld e scape, n ot a permanent 



REX V. KELLY. 

MoNAGHAN Assizes, Ireland. 1832. 

[Reported 1 Crawford Sr Dix, 186 ] 

Indictment for maliciously killing a horse. The evidence was that 
the prisoner had fired at the prosecutor, and killed his horse. 

1 See 43 Geo. II!. o. 58, § 1. 

^ Jcc. Rox V. niiffin, Euss. & Ry. 365. — Ed. 



SBOT. V,J EEGINA V. SMITH. 135 

BusHE, C. J. Under this Act * the offence must be proved to have 
been done maliciously, and malice implies intention. Here the proof 
negatives the intention of killing the horse. The prisoner must there- 
fore be acquitted.* 



EEGINA V. SMITH. 

Ckown Case Reserved. 1856. 

[Reported Dears. C. C. 559.] 

The following case was stated for the opinion of the Court of Crim- 
inal Appeal by Mr. Justice Ceompton. 

The prisoner was convicted before me at the "Winchester Summer 
Assizes, 1855, on an Indictment c harging him with wounding "William 
Taylor with intent to murder^im. 

On the night in question the prisoner was posted as a sentry at Park- 
hurst, and the prosecutor, Taylor, was posted as a sentry at a neigh- 
bouring post. 

The prisoner intended to murder one Maloney, and supposing Taylor .^'j 
to be Maloney, shot at and wounded Taj'lor. 

The jury found that the prisoner intended to murder Maloney, not 
knowing that the party he shot at was Taylor, but supposing him to be 
Maloney, and the jury found that he in tended to murder the individua l 
he shot atsu£po§ingJiim-to-Jje-Mal©Bei'. 

' 1 directed sentence of death to be recorded, reserving the question, 
whether the prisoner could be properly convicted on this state of facts 
of wounding Taylor with intent to murder him ? See Eex v. Holt, 7 
Car. & P. 518. See alro Rex i;. Ryan, 2 Moo. & Rob. 213. 

Chakles Crompton. 

This case was considered on 24th of November, 1855, by Jervis, 
C. J., Pakke, B., "Wightman, J., Crompton, J., and "Willes, J. 

No counsel appeared either for the Crown or for the prisoner. 

Jervis, C. J. There is nothing in the objection. The conviction is 
good. 

Parke, B. The priso ner did not intend to kill the particular person, 
t^^it ha mfifi"t. tr. mn^f^ffi- t.hf; manlil whom hti shot. 



The other learned Judges concurred. 

Conviction affirmed. 

1 9 Geo. IV. c. 56, § 17. 

s Ace. Com. V. Walden, 3 Cnsh. 558. — Ed. 



136 EEX V. WILLIAMS. [CHAP. II. 

REX V. WILLIAMS. 
Crown Case Kevbrsed. 1790. 
[Reported 1 Leach C. C. {4th Ed.) 529.] 

AsHHURST, J.* Ehenwick Williams, the prisoner at the bar, was tried 
in last Jul}' Session on the statute of 6 Geo. I, c. 23, and the indict- 
ment charged, that he, on the 18th Januar}' 1790, at the parish of St. 
James, in a certain public street called St. James's-street, wilfully, 
maliciously, and feloniously did make an assault on Anne Porter, 
spinster, with intent wilf ull y «.nd maliciously to tear, spoil, cut, and 
deface her garments-;- and that he, on that said 18th of January 1790, 
"in the parisTaforesaid, &c. did wilfuUj', maliciouslj-, and feloniously 
tear, spoil, cut, and deface her silk gown, petticoat, and shift, being 
part of the wearing apparel which she then had and wore on her 
person. The Jury found the prisoner guilty/ but the judgment was 
respited, and the case submitted to the consideration of the Judges 
upon three questions. A majority of the Judges are of opinion, upon 
all the questions, that this indictment is not well founded. . . . The 
Jiid^ri_jr r n f n p inin n. t hrit tlir rnn n. as proved, is r\ qt snhat an tially 
wfthinthe meaning of the Act_of_Earl iam e n t- This statute was passed 
upon a piiftlCUlar and extraordinary occasion. Upon the introduc- 
tion of Indian fashions into this country, the silk weavers, conceiving 
that it would be detrimental to their manufacture, made it a practice to 
tear and destroj' the clothes and garments which were of a different 
commodity from that which thej' wove, and to prevent this practice 
the statute of 6 Geo. I, c. 23, was made. To bring a case therefore 
within this statute, the primary intention must be the tearing, spoiling, 
cutting, or defacing of the clothes ; whereas, in the present case, the 
primary intention of the prisoner appears to have been the wounding 
of the person of the prosecutrix. The Legislature, at the time they 
passed this Act, did not look forward to the possibility of a crime 
of so diabolical a nature as that of wounding an unoffending person 
merely for the sake of wounding the person, without having received 
any provocation whatever from the party wounded. But even upon the 
supposition that it was possible for the Legislature to entertain an idea 
of such an offence, it is clear they did not intend to include it within 
the penalties of this statute, because, if they had entertained such an 
idea, it is probable they would have annexed to it a higher punishment 
than this statute inflicts. As the Legislature therefore could not have 
framed this statute to meet this offence, it does not . fall within the 
province of those who are to expound the laws to usurp the office of the 

1 Part of the opinion only is given. — Ed. 



SECT, v.] STATE V. TAYLOR. 137 

Legislature, and to bring an offence within the meaning of an Act, 
merely because it is enormous, and deserving of the highest punish- 
ment. But although the lash of the Legislature does not reach this 
offence so as to inflict the consequences of felony on the offender, yet 
t he wisdom of t he Common Law opens a means of prosecution by 
indictms nt for the — i&tsd<»m ettti^:tt^ and, on co nviction of the o ff u i iffer, 
arms the Court with a power to punish the offence in a way that may 
force him to repent the temerity of so flagrant a violation of the rules 
of law, the precepts of social duty, and the feelings of humanity.* 



STATE V. TAYLOR. 

Supreme Court of Vermont. 1896. 

[Reported 70 Vt. I.] 

Indictment for an assault with intent to kill and murder. Trial by 
jury at the May Term, 1895, Windsor County, Taft, J., presiding. 
Verdict and judgment of guilty, and sentence imposed at the respond; 
ent's request. The respondents excepted. 

MuNSON, J.'^ The alleged assault was committed upon Paul Tink- 
ham, constable of Rochester, and three persons acting under him, while 
they were effecting an arrest of the respondents and two others, with- 
out a warrant on suspicion of felonj\ . . . 

It is also objected that the respondents could not be convicted of 
more than a common assault without the finding of an actual intent to 
take life, and that the charge permitted the jury to return their verdict 
without finding this. It has been repeatedly held in cases not involving 
the matter of arrest that proof of a specific intent to kill is requisite. 
The intent is the body of the aggravated offence. If death results from 
an unlawful act, the offender may be guilty of murder, even though he 

^ It seems that Boller, J., retained the opinion he had given the Jury, viz. that 
the case came within the statute, because the Jury, whose sole prorince it was to find 
the intent, had expressly found that the intent of the prisoner was to wound the 
party by cutting through her clothes, and therefore that he must haye intended to cut 
her clothes ; and for this opinion he *elied upon the case of Cook and Woodburn, upon 
the statute 22 and 23 Car. II, c. 1, commonly called the Coventry Act, charging them 
in the words of the Act with an intention to maim a Mr. Crisp. The fact of maiming 
was clearly proved, but the defendants insisted tliat their intention was to murder 
him, and not to maim him, and therefore that they were not within the statute. But 
Lord King said that the intention was » matter of fact to be collected from the cir- 
cumstances of the case, and as such was proper to be left to the Jury ; and that if it 
was the intent of the prisoners to murder, it was to be considered whether the means 
made use of to accomplish that end and the consequences of those means were not 
likewise in their intention and design ; and the Jury found them guilty and they were 
executed. — But it seems that upon a subsequent occasion Willes, J., and £yke, B., 
expressed some dissatisfaction with this determination, and thought, at least, that the 
construction ought not to be carried further. 1 East, 400 and 424. 

2 Only so much of the case as discusses the question of intent to kill is given. — 
Ed. 



138 STATE V. TAYLOR. [OHAP. II. 

did not intend to take life ; but if the ass aiilt,Jio weYer d angerougiJa 
not ^wijjTg_»gqti^'''- ^-"""*^ ^-^ m nvicted of an assault withinten t to 
-^nninTesslheTntenLfixials^. An intent to take life may sometimes be 
-prssumedlVom"the~fect of killing, but when that fact does not exist the 
intent must be otherwise established. Any inference that may be drawn 
from the nature of the weapon and the manner of its use is an inference 
of fact to be drawn by the jury upon a consideration of these with the 
other circumstances of the case. 2 Bish. Crim. Law, § 741 ; Koberts 
V. People, 19 Mich. 401 ; Patterson v. State, 85 Ga. 131 ; 21 Am. St. 
152. 

Nor do we find any ground for holding otherwise when the assault 
is made in resistin^g arrest. Under an indictment framed like this, a 
respondent may be convicted of an assault with intent to kill, or an 
assault with intent to murder. State v. Reed, 40 Vt. 603. The grade 
of the assault will depend upon whether the crime would have been 
manslaughter or murder if death had ensued. But if t he death had_ 
rpgnltPfj^frnni rpsifitingr an fl.ntihnrized arrest properly made, the CL Jaie 
woind have been murder, regardless of the question of m alice. So if 
the assault charged was committed in resisting such an arrest, afld was 
found to have been made with intent to kill, it would have been an 
assault with intent to murder. But in the case of either assault there 
must have been the intent to take life. The elimination from the in- 
quiry of malice as the distinguishing test between murder and man- 
slaughter, and so between the two grades of assaults, does not eliminate 
the question of specific intent, which is an essential element even of the 
lower offence. The malice which the law infers from resistance to law- 
ful arrest does not cover the intent to do a particular injury, and the 
question of intent must stand the same as in other cases. 

So it becomes necessary to consider whether the matter of intent was 
properly submitted to the jury. The question was not entirelj' ignored 
by the court, but it was omitted from the general propositions sub- 
mitted, and we think the charge as a whole could not fail to leave upon 
the minds of the jury an impression that if the circumstances of the 
arrest were such that the killing of the officer would have been murder, 
the assault was an assault with intent to murder. The attention of the 
jury was directed almost exclusively to the question of guilt as depend- 
ing upon the legality of the arrest. They were nowhere distinctly told 
that unless the respondents were found to have made the assault with 
an intent to take life, they could be convicted of nothing but a common 
assault. 



SECT. V:] EEX V. SHEPPAED. 139 

REX V. SHEPPARD. 

Ceown Case Reserved. 1810. 

[Reported Russell ^ Ri/an, 169.] 

The prisoner was tried before Mr. Justice Heath, at tlie Old Bailey 
September sessions, in the year 1809, on an indictment consisting of 
four counts. 

The first count charged the prisoner with forging a receipt for 
£19 16s. M., purposing to be signed by W. S. West, for certain stock 
therein mentioned, with inten tlO-de fr a ud th e g pij^rnors and com{ )anv 
of the^ank- of Engla nd. The second count was for uttering the same 
knowing it to be forged, with the like intent. The third and fourth 
■counts varied from the first and second in charging the intent to have 
been to defraud Richard Mordey. 

It appeared in evidence at the trial that Richard IVfordey gave £20 
to his brother, Thomas Mordey, in the month of January, 1809, to 
buy stock in the five per cent Navy. 

In February following Thomas Mordey gave the £20 to the prisoner 
for the purchase of the said stock, on the prisoner's delivering to him 
the receipt stated in the indictment. 

The prisoner being examined at the bank, confessed that the receipt 
was a forgery, that there was no such person as W. S. West, whose 
signature appeared subscribed to the receipt, and that he, being- 
pressed for money, forged that name, but had no intention of defraud- 
ing Richard Mordey. 

Richard Mordey and Thomas Mordey swore they believed that the 
prisoner had no such intent. 

On examining the bank books, no transaction corresponding with 
this could be found. 

T he learn pd jndgp tnld the ^ury that th £ prisoner was entitled to an 
acquittal on the first and seconoScounts, because the receipt in ques- 
tion could not operate in fraud of iSt^e governor and company of the 
bank. \ 

That as to the third and fourth counts, although the Mordeys 
swore that they did not believe the forgery to have been committed 
with an intent to defraud Richard Morde^ yet, as it was the neces- 
sary effect and consequence of the forgery, \f the prisoner could n ot 
re pay the money, it was sufficient ev idence ofthe intent for them to 
rTf>nvict the nrianner. ' ^^^ ' 



The jui-y^cquitted the prisoner on the first and second counts, and 
found him guilty on the third and fourth counts ; and the learned 
judge reserved this case for the opinion of the judges, to determine 
whether this direction to the jury was right and proper. 

In Easter terra, 31st of May, 1810, all the judges were present, and 
they were all of opinion that the conviction was right, that the imme- 
diate effect of the act was the defrauding of Richard Mordey of his 
money. 



140 gore's case. [chap. ii. 

GOKE'S CASE. 
Ckown Case Keserved. 1611. 

[Reported 9 Coke, 81 a.] 

Before Fleming, Chief Justice, aud Tanfield, Chief Baron, Justices 
of Assize, this case happened in their western circuit. Agnes, the 
daughter of Koper, married one Gore ; Gore' fell sick ; Roper, the 
father, in good-will to the said Gore his son-in-law went to one Dr. 
Gray, a ph3-sician, for his advice, who made a receipt directed to one 
Martin, his apothecarj^ for an electuarj' to be made, which the said 
Martin did and sent it to the said Gore ; Agnes, the wife of Gore^ 
secTfiUy-HirsBd-sigi^bane with the electuarj', to the intent therewith to 
poison her husbandj^nd afterward, 18 Mail, she gave part of it to her 
husband, who eat thereof and immediately became grievously sick ; 
the same daj' Roper the father eat of it, and immediately also became 
sick ; 19 Maii C. eat part of it, and he likewise fell sick ; but they all 
recovered, and j'et are alive. The said Roper, observing the operation 
of the said electuary, carried the said box with the said electuary 21 
Mail to the said Graj' the physician and informed bira of the said 
accidents, who sent for the said Martin the apothecary and asked him 
if he had made the said electuarj' according to his direction, who 
answered that he had in all things but in one, which he had not in his 
shop, but put in another thing of the same operation, which the said 
Dr. Gray well approved of; whereupon Martin the apothecary said, " To 
the end you may know that I haye^jiofput anything in it which I 
myself will not eat, I will here--belore you eat part of it," and there- 
upon Martin took thebosr^nd with his knife mingled and stirred to- 
gether the said,^el:ectuary, and took and eat part of it, of which he 
died t he 2^ draa.y of May following. The question was, if upon all 
tKismatter Agnes had committed murder. And this case was deliv- 
ered in writing to all the judges of England to have their opinions in 
the case ; and the doubt was, because Martin himself of his own head, 
without incitation or procurement of an}', not only eat of the said 
electuary, but he himself mingled and stirred it together, which mix- 
ing and stirring had so incorporated the poison with the electuary, 
that it made the operation more forcible than the mixture which the 
said Agnes had made ; for notwithstanding the mixture which 
Agnes had made, those who eat of it were sick, but j-et alive, but the 
mixture which Martm has made In* mingling and stirring of it with 
his knife, made the operation of the poison more forcible and was the 
occasion of his death. And if this circumstance would make a differ- 
ence between this case and Saunders's case in Plow. Com. 474 was 
the question. 

And it _was_ jesolved by alltbe_judgesj]ha,t- 4h i ! i i j,id A gn£a_jHea3 
ppiiilfy'nf^o T^n^^^rqp^; __of tEe"salaJ W°^'^^^^T^^'• the law conjoins the mur- 



SECT, v.] EEGIKA V. PEMBLITON. 141 

derous intention of Agnes in putting the poison into the electuary to 
kill her husband with the event which thence ensued, — sc. the 
death of the said Martin ; for the putting of the poison into the elec- 
tuary is the occasion and cause, and the poisoning and death of the 
said Martin is the event, quia eventus est qui ex causa sequitur, et 
dicuntur eventus quia ex causis eveniunt, and the stirring of the 
electuary hy Martin with his knife without the putting in of the poison 
by Agnes could not have been the cause of his death. 

And it was also resolved that if A. puts poison into a pot of wine, 
&c., to the intent to poison B., and sets it in a place where he sup- 
poses B. will come and drink of it, and by accident C. (to whom A . 
has no malice) comes and of his own head takes the pot and drinks of 
it, of which poison he dies, it is murder in A., fn r thp ] aw r-nnplpg th i» 
event wi th the intention, a nd the_ en£| wit.h thp p^nsa ; and in the same 
'^as^TfCTthinking that sugar is in the wine, stirs it with a knife and 
drinks of it, it will not alter the case ; for the King by reason of the 
putting in of the poison with a murderous intent has lost a subject ; 
and therefore in law he who so put in the poison with an ill and felo- 
nious intent shall answer for it. But if one prepares ratsbane to kill 
rats and mice, or other vermin, and leaves it in certain places to that 
purpose, and with no ill intent, and one finding it eats of it, it is not 
felony, because he who prepares the poison has no ill or felonious in- 
tent ; but when one prep ares poison with a felonious intent to kill any 
reasonabl e "creature ; whata o n v p r rr n rnnn bl r prrfitnrn i f; thrrrhy Irill ffl , 
'hp. who ha,a the fll nnH fp1r»Tiiniig intent shall be punished for it, for 
"^he ii""as great an offen der as if his intent a gainst, t.hp nthpr parann 
"H w i d taken -eflect; Alnd" if the law should not be such, this horrible 
and heinous offence would be unpunished ; which would be mischievous 
and a great defect in the law. 



EEGINA *. PEMBLITON. 
Crown Case Reserved. 1874. 

[Reported 12 Cox 0. C. 607.] 

Case stated for the opinion of this court by the Recorder of 
Wolverhampton. 

At the Quarter Sessions of the Peace held at Wolverhampton on the 
8th day of January instant Henry Pembliton was indicted for that he 
" unlawfully and maliciously did commit damage, injury, and spoil upon 
a window in the house of Henry Kirkliam " contrary to the provision 
of the stat. 24 & 25 Vict. c. 97, s. 61. This section of the statute 
enacts : — 

" Whosoever shall unlawfully and maliciously commit any damage, 
Injury, or spoil to or upon any real or personal property whatsoever, 



142 EEGINA V. PBMBLITON. [CHAP. II. 

either of a public or a private nature, for which no punishment is 
hereinbefore provided, the damage, injury, or spoil being to an amount 
exceeding £5, shall be gull 13- of a misdemeanor, and being convicted 
thereof shall be liable, at the discretion of the court, to be imprisoned 
for any term not exceeding two years, with or without hard labor ; and 
in case any such offence shall be committed between the hours of nine 
of the clock in the evening and six of the clock in the next morning, he 
shall be liable at the discretion of the court to be kept in penal servi- 
tude for any term not exceeding five years, and not less than three, or 
to be imprisoned for any term not exceeding two years, with or without 
hard labor." . 

On the night of the 6th day of December, 1873, the prisoner was 
drinking with others at a public-house called " The Grand Turk " kept 
by the prosecutor. About eleven o'clock p. m. the whole party were 
turned out of the house for being disorderly, and they then began to 
fight in the street and near the prosecutor's window, where a crowd 
of from forty to fifty persons collected. The prisoner, after fighting 
some time with persons in the crowd, separated himself from them, and 
removed to the other side of the street, where he picked up a large 
stone and threw it at the persons he had been fighting with. The stone 
passed over the heads of those persons, and struck a large plate-glass 
window in the prosecutor's house, and broke it, thereby doing damage 
to the extent of £7 12s. dd. 

The jury, after hearing evidence on both sides, found tha t the p ris- 
oner threw the stone whi ch broke the window, but that h e threw it at 
the peo ple ^he had been fighting with, intendino; to strike one or more of 
■them with it, but not intending to break the window ; and they returned 
a verdict of "guilty," whereupon I respited the sentence, and admitted 
the prisoner to bail, and pray the judgment of the Court for Crown 
Cases Eeserved, whether upon the facts stated and the finding of the 
jury, the prisoner was rightly convicted or not. 

(Signed) John J. Powell, 

Recorder of Wolverhampton. 

No counsel appeared to argue for the prisoner. 

X Underhill, for the prosecution.^ 

Lord Coleridge, C. J. I am of opinion that this conviction must 
be quashed. The facts of the case are these. The prisoner and some 
other persons who had been drinking in a public-house were turned out 
of it at about eleven p. m. for being disorderly, and they then began to 
fight in the street near the prosecutor's window. The prisoner sepa- 
rated himself from the others, and went to the other side of the street, 
and picked up a stone, and threw it at the persons he had been fighting 
with. The stone passed over their heads, and broke a large plate-glass 
window in the prosecutor's house, doing damage to an amount exceed- 
ing £5. The jury found that the prisoner threw the stone at the people 

^ The argument is omitted. 



SECT, v.] REGINA. V. PEMBLITON. 143 

he had been fighting with, intending to strike one or more of them with it, 
but not intending to brealc the window, The question is whetlier under 
an . indictment for unlawfully- and maliciously committing an injury to 
the window in the house of the prosecutor, the proof of these facts alone, 
coupled with tlie finding of the jury, will do. Now I think that is not 
enough. The indictment is framed under the 24 & 25 Vict. c. 97, s. 51. 
The Act is an Act relating to malicious injuries to property, and section 
51 enacts that whosoever shall unlawfully and maliciously commit anj' 
damage, &c., to or upon any real or personal property whatsoever of a 
public or a private nature, for which no punishment is hereinbefore 
provided, to an amount exceeding £5, shall be guilty of a misdemeanor. 
There is also the 58th section which deserves attention. " Every pun- 
ishment and forfeiture bj' this Act imposed on any person maliciously 
committing any offence, whether the same be punishable upon indict- 
ment or upon summar3' conviction, shall equally applj^ and be enforced, 
whether the offence shall be committed from malice conceived against J 
the owner of the property in respect of which it shall be committed,/ 
or otherwise." It seems to me on both these sections that what was 
intended to be provided against by the Act is the wilfully doing an 
unlawful act, and that the act must be wilfully and intentionally done 
on the part of the person doing it, to render him liable to be convicted. 
Without saying that, upon these facts, if the jury had found tliat the 
prisoner had been guilty of throwing the stone recklessly, knowing that 
there was a window near which it might probably hit, I should have 
been disposed to interfere with the conviction, yet as thej' have found 
that he threw the stone at the people he had been fighting with, intend- 
ing to strike them and not intending to break the window, I think the 
conviction must be quashed. I do not intend to throw any doubt on 
the cases which have been cited, and which show what is sufficient to 
constitute malice in the case of murder. They rest upon the princi- 
ples of the common law, and have no application to a statntor3- offence 
created by an Act in which the words are carefully studied. 

Blackburn, J. I am of the same opinion, and I quite agree that it 
is not necessary to consider what constitutes wilful malice aforethought 
to bring a case within the common law crime of murder, when we are 
construing this statute, which says that whosoever shall unlawfully and 
maliciously commit any damage to or upon any real or personal prop- 
erty to an amount exceeding £5, shall be guilty of a misdemeanor. 
A person may be said to act maliciously when he wilfully does an 
unlawful act without lawful excuse. The question here is. Can the 
prisoner be said, when he not only threw the stone unlawfully, but 
broke the window unintentionally, to have unlawfully and maliciously 
broken the window? I think that there was evidence on which the jury 
might have found that he unlawfully and maliciously broke the window, 
if they had found that the prisoner was aware that the natural and 
probable consequence of his throwing the stone was that it might break 
the glass window, on the principle that a man must be taken to intend 



144 EEGINA V. FAULKNER. [CHAP. II. 

what is the natural and probable consequence of his acts. But the jury 
have not found that the prisoner threw the stone, knowing that, ou the 
other side of the men he was throwing at, there was a glass window, 
and that he was recliless as to whether he did or did not break the 
window. On the contrary, they have found that he did not intend to 
break the window. I think therefore that the conviction must be 
quashed. 

PiGOTT, B. I am of the same opinion. 

Lush, J. I also think tliat on this finding of the jury we have no 
alternative but to hold that the conviction must be quashed. The word t 
" maliciously "rnpans nry a.fiti done either actually or constru ctively witli 
-nraticToiisTntention. The jury might have found tnat he did intend 
actually to break the window, or constructively to do so, as that he 
knew that the stone might probably break it when he threw it. But 
they have not so found. 

Cleasbt, B., concurred. Conviction quashed. 



REGINA V. FAULKNER. 
Crown Case Reserved, Ireland. 1877. 

[Reported 13 Cox C. 0. 550.] 

Case reserved by Lawson, J., at the Cork Summer Assizes, 1876. 
The prisoner was indicted for setting fire to the ship " Zemindar," on 
the high seas, on the 26th day of June, 1876. The indictment was as 
follows: "T.Hat Robert Faulkner, on the 26th day of June, 1876, on 
board a certain ship called the ' Zemindar,' tlie property of Sandback, 
Tenne, and Co., on a certain vo3'age on the high seas, then being on 
the high seas, feloniously, unlawfully, and maliciouslj', did set fire to the 
said ship ' with intent thereby to prejudice the said ' (these words were 
struck out at the trial by the learned judge, and the following words 
inserted, ' called the " Zemindar," the property of) Sandback, Tenne, 
and Co., and that the said Robert Faulkner, on the day and year afore- 
said, on board a certain ship called the ' Zemindar,' being the property 
of Sandback, Parker, and other, on a certain voyage on the high seas, 
then being upon the high seas, feloniously, unlawfully, and maliciously, 
did set fire to the said ship, with intent thereby to prejudice the said 
Sandback, Parker, and other, the owners of certain goods and chattels 
then laden, and being on board said ship." It was proved that the 
" Zemindar" was on her voyage home with a cargo of rum, sugar, and 
cotton, worth £50,000. That the prisoner was a seaman on board, that 
he went into the forecastle hold, opened the sliding door in the bulk- 
head, and so got into the hold where the rum was stored ; he had no 
business there, and no authority to go there, and went for the purpose 
of stealing some rum ; that he bored a hole in the cask with a gimlet ; 
that the rum ran out ; that when trying to put a spile in the hole out of 



SECT, v.] REGINA V. FAULKNER. 145 

which the rum was running he had a lighted match in his hand ; that 
the rum caught fire ; that the prisoner himself was buraed on the arms 
and neck ; and that the ship caught fire and was completely destroyed. 
At the close of the case for the Crown, counsel for the prisoner aslied 
for a direction of an acquittal on the ground that on the facts proved 
the indictment was not sustained, nor the allegation that the prisoner 
had unlawfully and maliciously set fire to the ship proved. The Crown 
contended that inasmuch as the prisoner was at the time engaged in 
the commission of a felony, the indictment was sustained, and the 
allegation of the intent was immaterial. 

At the second hearing of the case, before the Court for Crown Cases 
Reserved, the learned judge made the addition of the following para- 
graph to the case stated by him for the court. 

' ' It was conceded that the prisoner had no actual intention of burn- 
ing the vessel, and I was not asked to leave any question to the jury 
as to the prisoner's knowing the probable consequences of his act, or 
as to his reckless conduct." 

The learned judge told the jury that although the prisoner had no 
actual intention of burning the vessel, still if they found he was en- 
gaged in stealing the rum, and that the fire took place in the manner 
above stated, they ought to find him guilty. The jury found the pris- 
oner guilty on both counts, and he was sentenced to seven years' penal 
servitude. The question for the court was whether the direction of th» 
learned judge was right ; if not, the conviction should be quashed.' 

I'eter O'Brien, for the prisoner. 

The Attorney General (May), with him Green, Q. C, for the Crown." 

O'Brien, J.^ I am also of opinion that the conviction should be 
quashed, and I was of that opinion before the case for our consideration 
was amended by my brother Lawson. I had inferred from the original 
case that his direction to the jurj' was to the effect now expressly stated 
by amendment, and that, at the trial, the Crown's counsel conceded 
that the prisoner had no intention of burning the vessel, or of ignit- 
ing the rum ; and raised no questions as to prisoner's imagining or 
having any ground fqr supposing that the fire would be the result or 
consequence of his act in stealing the rum. With respect to Reg. v. 
Pembliton, 12 Cox C. C. 607, it appears to me there were much stronger 
grounds in that case for upliolding the conviction than exist In the case 
before us. In that case the breaking of the window was the act of the 
prisoner. He threw the stone that broke it ; he threw it with the un- 
lawful intent of striking some one of the crowd about, and the breaking 
of the window was the direct and immediate result of his act. And yet 

^ 24 & 25 Vict. c. 97, s. 42, "Whoever shall unlawfully and maliciously set fire to, 
cast away, or in anywise destroy any ship or vessel . . . shall be guilty of felony." 

^ Arguments of counsel are omitted. 

' Concurring opinions of Barry and Fitzgerald, JJ., and Fitzgerald, B., and 
the dissenting opinion of Keogh, J. are omitted. Dowse and Deasy, BB., and 
Lawson, J. also concurred. — Ed. 



146 KEGINA V. FAULKNER. [CHAP. II. 

the court unanimously quashed the conviction upon the ground that, 
although the prisoner threw the stone intending to strike some one or 
more persons, he did not intend to break the window. The courts 
above have intimated their opinion that if the jury, upon a question to 
that effect being left to them, had found that the prisoner, knowing the 
window was there, might have reasonably expected that the result of 
his act would be the breaking of the window, that then the conviction 
should be upheld. During the argument of this case the Crown counsel 
required us to assume that the jury found their verdict upon the ground 
that in their opinion the prisoner may have expected that the fire would 
be the consequence of his act in stealing the rum, but nevertheless did 
the act recklessly, not caring whether the fire took place or not. But 
at the trial there was not even a suggestion of any such ground, and 
J we cannot assume that the jury formed an opinion which there was no 
evidence to sustain, and which would be altogether inconsistent with 
the circumstances under which the fire took place. The reasonable 
inference from the evidence is that the prisoner lighted the match for 
the purpose of putting the spile in the hole to stop the further running 
of the rum, and that while he was attempting to do so, the rum came in 
contact with the lighted match and took fire. The recent case of Reg. 
V. Welch, 13 Cox C. C. 121, has been also referred to, and has been 
relied on by the Crown counsel on the ground that, though the jury 
found that the prisoner did not, in fact, intend to kill, maim, or wound 
the mare that had died from the injury inflicted by the prisoner, the 
prisoner was, nevertheless, convicted on an indictment charging him 
with having unlawfullj' and maliciously killed, maimed, or wounded the 
mare, and such conviction was upheld by the court. But on referring 
to the circumstances of that case it will be seen that the decision in it 
does not in any way conflict with that in the previous case of Reg. v. 
Pembliton, and furnishes no ground for sustaining the present convic- 
tion. Mr. Justice Lindley, who tried that subsequent case, appears to 
have acted in accordance with the opinion expressed by the judges in 
Reg. V. Pembliton. Besides leaving to the jurj' the question of prisoner's 
intent, he also left them a second question, namel}-, whether the pris- 
oner, when he did the act complained of, knew that what he was doing 
would or might kill, maim, or wound the mare, and nevertheless did the 
act recklessly, and not caring whether the mare was injured or not. 
The jury answered that second question in the affirmative. Their 
finding was clearly warranted by the evidence, and the conviction was 
properly aflflrmed. ' By those two questions a distinction was taken 
between the case of an act done by a part)- with the actual intent to 
cause the injury inflicted, and the case of an act done bj- a party know- 
ing or believing that it would or might cause such injury, but reckless 
of the result whether it did or did not. In the case now before ns there 
was no ground whatever for submitting to the jury any question as to 
the prisoner believing or supposing that the stealing of the rum would 
be attended with a result so accidental and so dangerous to himself 



SECT, v.] EEGINA V. FAULKNER. 147 

During the argument doubts were suggested as to the soundness of the 
decision in Reg. v. Pembliton ; but in my opinion that case was rightly 
decided, and should be followed. Its authority was not questioned in 
Eeg. V. Welch, in which the judges who constituted the court were 
different from those who had decided Reg. v.- Pembliton, with the excep- 
tion of Lord Coleridge, who delivered the judgments of the court on 
both occasions. 

Palles, C. B. 1 concur in the opinion of the majority of the court, 
and I do so for the reasons already stated by my brother Fitzgerald. 
I agree with my brother Keogh that from the facts proved the inference 
might have been legitimately drawn that the setting fire to the ship 
was malicious within the meaning of the 24 & 25 Vict. c. 97. I am of 
opinion that that inference was one of fact for the jury, and not a con- 
clusion of law at which we can arrive upon the case before us. There 
is one fact from which, if found, that inference would, in my opinion, 
have arisen as matter of law, as that the setting fire to the ship was the 
probable result of the prisoner's act in having a lighted match in the 
place in question ; and if that had been found I should have concurred 
in the conclusion at which Mr. Justice Keogh has arrived. In my 
judgment the law imputes to a person who wilfully commits a criminal 
act an intention to do everything which is the probable consequence of 
the act constituting the corpus delicti which actually ensues. In mj- 
opinion this inference ' arises irrespective of the particular consequence 
which ensued being or not being foreseen by the criminal, and whether 
his conduct is reckless or the reverse. This much I have deemed it 
right to saj' to prevent misconception as the grounds upon which mj' 
opinion is based. I wish to add one word as to Reg. v. Pembliton, 12 
Cox C. C. 607. In mj' opinion the learned judges who were parties to 
that decision never intended to decide, and did not decide, anything 
contrary to the views I have expressed. That they did not deem actual 
intention, as distinguished from implied intention, essential is shown 
by the subsequent case of Reg. v. Welch, in which an indictment under 
the 40th section of the same Act was upheld, although actual intention 
was negatived by the jury. The facts found in answer to the second 
question in that case cannot have been relied upon as evidence of 
actual intention. As evidence thej- would have been valueless in face 
of the finding negativing the fact which in this view thej' would have 
but tended to prove. Their value was to indicate a state of facts in 
which intention was imputed b}- an irrefutable inference of law. It was 
not germane to the actual decisions in Reg. v. Pembliton and Reg. 'v. 
Welch to determine whether the state of facts from which this inference 
of law arises is that suggested in the first case and acted upon by the 
second, or the circumstance of one act being the natural consequence 
of the other. Some of the learned judges, no doubt, during the argu- 
ments and in their judgments in the first case indicate a state of facts 
from which this inference would arise. They do not decide that the 
same inference might not arise in the other state of facts to which 1 



148 EEGINA V. LATIMER. [CHAP. II. 

have alluded. If, contrary to my own view of that case, it shall be held 
to involve that intention to do that which is a necessary consequence 
of a wrongful act wilfully committed is not an inference irrefutable as 
matter of law, I must say, with unfeigned deference, that I shall hold 
myself free hereafter to decline to follow it. The Lord Chief Justice 
of the Common Pleas, who, in consequence of illness, has been unable 
to preside to-day, has authorized me to state that he considers that the 
case before us is concluded by Reg. v. Pembliton. 

Gonviction quashed. 



REGINA V. LATIMER. 
Ceown Case Reserved. 1886. 

[Reported 16 Cox C. C. 70.] 

Case stated by the learned Recorder for the borough of Devonport 
as follows : — 

The prisoner was tried at the April Quarter Sessions for the borough 
of Devonport on the 10th day of April, 1886. 

The prisoner was indicted for unl awfully and m aliffloiisly wnnriding 
Ellen Rolston. There was a second count charging him with a com- 
mon assault." 

The evidence showed that the prosecutrix, Ellen Rolston, kept a 
public-house in Devonport ; that on Sunday, the 14th day of February, 
1886, the prisoner, who was a soldier, and a man named Horace 
Chappie were in the public-house, and a quarrel took place, and event- 
ually the prisoner was knocked down by the man Horace Chappie. 
The prisoner subsequently went out into a yard at the back of the 
house. In about five minutes the prisoner came back hastily through 
the room in which Chappie was still sitting, having in his hand his 
belt which lie had taken off. As the prisoner passed he aimed a blow 
with his belt at the said Horace Chappie, and struck him slightly ; 
f the belt bounded off and struck the prosecutrix, who was standing 
talking to the said Horace Chappie, in the face, cutting her face open 
and wounding her severel}'. 

At the close of the case the learned Recorder left these questions to 
the jury : 1. Was the blow struck at Chappie in self-defence to get 
through the room, or unlawfully and maliciously? 2. Did the blow so 
struck in fact wound Ellen Rolston? 3. Was the striking Ellen 
Rolston purely accidental, or was it such a eonsequence as the pris- 
oner should have expected to follow from the blow he aimed at 
Chappie ? . 

The jury found : 1. That the blow was unlawful and malicious. 
2. That the blow did in fact wound Ellen Rolston. 3. That the strik- 
ing Ellen Rolston was purely accidental, and not such a consequence 
of the blow as the prisoner ought to have expected. 



SECT, v.] REGINA V. LATIMER. 149 

Upon these findings the learned Recorder directed a verdict of 
guilty to be entered to the first count, but respited judgment, and 
admitted the prisoner to bail, to come up for judgment at tlie next 
sessions. 

The question for the consideration of the court was, whether upon 
the facts and the findings of the jury the prisoner was rightly con- 
victed of the ofience for which he was indicted. 

By sect. 20 of 24 & 25 Vict. c. 100, it is enacted that, " Whosoever 
shall unlawfully and maliciousl}' wound or inflict any grievous bodily 
harm upon any other person, either with or without any weapon or 
instrument, shall be guilty of misdemeanor." 

Croft for the prisoner.'' 
„ Helpmati, for the prosecution, was not called upon. 

Lord Coleridge, C. J. I am of opinion that this conviction must 
be sustained. In the first place, it is common knowledge that, if a 
person has a malicious intent towards one person, and in carrying into) 
effect that malicious intent he injures another man, he is guilty ofj 
what, the law considers malice against the person so injured, becausel 
he is guilty of general njalice ; and is guilty if the result of his unlaw- 
ful act be to injure a particular person. That would be the law if the 
case were res Integra; but it is not res integra because, in Reg. v. 
Hunt, a man in attempting to injure A. stabbed the wrong man. 
There, in point of fact, he had no more intention of injuring B. than 
a man has an intent to injure a particular person who fires down a 
street where a number of persons are collected, and injures a person 
he never heard of before. But he had an intent to do an unlawful act, 
and in canying out that intent he did injure a person ; and the law 
says that, under such circumstances, a man is guilty of maliciously 
wounding the person actually wounded. That would be the ordinary 
state of the law if it had not been for the case of Reg. v. Pembliton. 
But I observe that, in such an indictment, as in that case, the words 
of the statute carry the case against the prisoner more clearly still, 
because, by sect. 18 of the statute 24 & 25 Vict. c. 100, it is enacted 
that : '' Whosoever shall unlawfully and maliciously by any means 
whatsoever wound . . . anj' person . . . with intent ... to maim, 
disfigure, or disable any person . . . shall be guilty of felony ; " and 
then sect. 20 enacts that " whosoever shall unlawfully and maliciously 
wound . . . any other person . . . shall be guilty of a misdemeanor ; " 
and be liable to certain punishments. Therefore, the language of the 
18th and 20th sections are perfectly different; and it must be remem- 
bered that this is a conviction for an offence under the 20th section. 
Now, the Master of the Rolls has pointed out that these very sections 
are in substitution for and correction of the earlier statute of 9 Geo. 4, 
c. 31, where it was necessary that the act should have been done with 
intent to maim, disfigure, or disable such person, showing that the 

1 The argument is omitted. 



150 REGINA V. LATIMER. [CHAP. II. 

inteut must have been to injure the person actually injured. Tbos*. 
words are left out in the later statute, and the words are " wound any 
other person." I cannot see that there could be any question, but lot 
the case of Reg. v Pembliton. Now, I think that that case was prop- 
erly decided ; but upon a ground which renders it clearly distinguish- 
able from the present case. That is to say, the statute which was 
under discussion in Reg. v. Pembliton makes an unlawful injury to 
property punishable in a certain way. In that case the jury and the 
facts expressly negatived that there was any intent to injure any prop- 
erty at all ; and the court held that, in a statute which created it an 
offence to injure property, there must be au intention to injure property 
in order to support an indictment under that statute. But for that 
case Mr. Croft is out of court, and I therefore think that this convic- 
tion should be sustained. 

LoKD EsHEK, M. R. I am of the same opinion. It seems to me 
that the case of Reg. v. Pembliton is the only case which could be 
cited against a well-known principle of law. But that case shows that 
xliere was no intention to injure any property at all ; therefore there 
was no intent to commit the crime mentioned in the Act. 

BowEN, L. J. I am also of opinion that this conviction should be 
affirmed. It is quite clear that this offence was committed without any 
malice in the mind of the prisoner, and that he had no intention of 
wounding Ellen Rolston. The only difficulty that arises is from Reg. 
V. Pembliton, which was a case under an Act of Parliament which 
does not deal with all malice in general, but with malice towards prop- 
ertj' ; and all that case holds is, that though the prisoner would have 
been guilty of acting maliciously within the common law meaning of 
the term, still he was not guilty of acting maliciously' within the mean- 
ing of a statute which requires a maliciousintent to injure property. 
Had the prisoner meant to strike a pane of glass, and without any 
reasonable expectation of doing so injured a person, it might be said 
that the malicious intent to injure property was not enough to sustain 
a prosecution under this statute. But, as the jury found that the 
prisoner intended to wound Chappie, I am of opinion that he acted 
maliciously within the meaning of this statute. 

Field, J. I am also of opinion that this conviction must be af- 
firmed. I think this a verj' important case and one of verj' wide 
application, and am very glad that it has come before this court, and 
has been carefully considered and decided so that there may be no 
doubt about the matter. 

Manistt, J. I do not propose to add more than a few words. The 
facts in this case raise an exceedingly important question, because the 
man Chappie, who was intended to be struck, was standing close by 
the woman who vras wounded, and who was talking to him ; and the 
prisoner mtending to strike Chappie with the belt did strike him, but 
the belt bounded off and struck Ellen Rolston. It seems to me that 
the first and second findings of the jury justify the conviction, because 



SECT, v.] EEX V. KNIGHT. 151 

they are in these terms : " The jur^' found that the blow was unlawful 
and malicious, and that it did in faot wound Ellen Rolston ; " and that 
being so, I think that the third finding does not entitle the prisoner to 
an acquittal. It is true he did not intend to strike Ellen Rolston, but 
he did intend to strike Chappie, and in doing so wounded Ellen Rols- 
ton ; therefore I think that the third finding is quite immaterial, and 
this conviction should be aflBrmed.* 

Conviction affirmed. 



REX V. KNIGHT. 

Crown Case Reserved. 1783. 

[Reported 2 East, Pleas of the Crown, 510.] 

The prisoners were indicted for feloniously and burglariously break- 
ing and entering the dwelling-house of Mary Snelling at East Grin- 
stead, in the night of November 14, 1781, with intent to steal the goods 
of Leonard Hawkins, then and there being in the said dwelling-house. 
It appeared that L. Hawkins, being an excise officer, had seized seven- 
teen bags of tea on the same month at a Mrs. Tilt's, in a shop entered 
in the name of Smith, as being there without a legal permit, and had 
removed the same to Mrs. Snelling's at East Grinstead, where Hawkins 
lodged. The tea, the witnesses said, they supposed to belong to Smith ; 
and that on the night of November 14 the prisoners and divers other 
persons broke open the house of Marj' Snelling with intent to take this 
tea. It was not proved that Smith was in company with them ; but 
the witnesses swore that they supposed the fact was committed either 
in companj' with or by the procurement of Smith. The jurj' were di- 
rected to find the prisoners guilty, on the point being reserved; and 
being also directed to find as a fact with what intent the prisoners broke 
and entered the house, they found that they intended to take the 
goods on the behalf of Smith. In Easter term following all the judges 
held that the indictment was not supported, there being no intention to 
steal, however outrageous the behavior of the prisoners was in thus 
endeavoring to get back the goods for Smith.^ 

^ See ace. (wounding with intent to do bodily harm) Reg. v. Lynch, 1 Cox C. C. 
361 ; Beg. a Stofford, 1 1 Cox C. C. 643 ; (with intent to kill) Reg. v. Smith, 7 Cox 
C. C. 51. — Ed. 

2 Ace. Com. V. Newell, 7 Mass. 245. — Ed. 



152 UNITED STATES V. UAVIS. [CHAP. II. 



SECTION VI. 

Jurisdiction over an Offence. 

UNITED STATES v. DAVIS. 
U. S. Circuit Court, District of Massachusetts. 1837. 

[Reported 2 Summer, 482.] 

Indictment for manslaughter. It appeared that the defendant, 
master of an American whale ship, shot and killed a man on the declt 
of another vessel which lay alongside ; both vessels lay at the time in 
a harbor of one of the Society Islands.' 

Story, J. We are of opinion that, under the circumstances estab- 
lished in evidence, there is no jurisdiction in this cause. 

What we found ourselves upon in this case is, that the offence, if 
any, was committed, not on board of the American ship "Rose," but 
on board of a foreign schooner belonging to inhabitants of the So- 
ciety Islands, and, of course, under the territorial government of the 
king of the Society Islands, with which kingdom we have trade -and 
friendly mtercourse, and which our government may be presumed 
(since we, have a consul there) to recognize as entitled to the rights and 
sovereignty of an independent nation, and of course entitled to try 
offences committed within its territorial jurisdiction. I say the offence 
was committed on board of the schooner ; for although the gun was 
fired from the ship " Rose," the shot took effect and the death hap- 
I pened on board of the schooner ; and the act was, in contemplation of 
/ law, done where the shot took effect. So the law was settled in the 
case of Rex v. Coombs, 1 Leach Cr Cas. 432, where a person on the high 
seas was killed by a shot fired by a person on shore, and the offence 
was held to be committed on the higli seas, and to be within the Admi- 
ralty jurisdiction. O Loffences committed on *^'^ 111 7; '^ °°"° "1 i'""'ri .-.f 
fo ^ign vesse ls (not being a piratical vessel), but belonging to persons 
under the dBEnowledged government of a foreign country, this_cS2urt 
has no jurisdiction under the Act of 1790 , ch. 36, § 12. That was the 

1 This short statement of facts has been substituted for that contained in the 
report. 



SECT. VI.] STATE V. GESSERT. 153 

doctrine of the Supreme Court in United States v. Palmer, 3 Wlieat. E. 
610, and United States v. Kliutock, 5 Wiieat. R. 144, and United 
States V. Holmes, 5 Wheat. R. 412 ; applied, it is true, to another class 
of cases, but in its scope embracing the present. We lay no stress on 
the fact that tlie deceased was a foreigner. Our judgment would be 
the same if he had been an American citizen. We decide the case 
wholly on the ground that the schooner was a foreign vessel belonging 
to foreigners, and at the time under the acknowledged jurisdiction of 
a foreign government. We think that under such circumstances the 
jurisdiction over the offence belonged to the foreign government, and 
not to the courts of the United States under the Act of Congress. 
The jury immediately returned a verdict of not guilty. 



STATE V. GESSERT. 
Supreme Court of Minnesota. 1875. 

[Reported 21 Minnesota, 369.] 

Berry, J. The indictment in this case was found by a grand jury 
of Washington County, and charges the defendant with committing the 
crime of murder, by feloniously, &c. , inflicting upon David Savazyo, 
on Aug. 28, 1874, in said county, a stab and wound, of which, upon 
the same day, Savazyo died in the county of Pierce, and State of Wis- 
consin. The question in the ra.eip is whet.her t.hr indirtmrnt ph^''Z^'' 
the commission ot an offence in the co 'int.y nf Wqfahincrt.nn It is for 
h4s-a:ct^tbat defendant is responsible. They constitute his offence. 

T he place w bPiP t.hpy are fi ommitte.d mngt hp t.hp pl^ir-P lylioro ^ifj pffonf^o 
is coTnmitted ^and therefore t he pigpp whprp hp ahrnil^^ be indicted and 
.Jristiii^^ir-th is instance the acts with which defendant is charged, 
to wit, the stabbing and wounding, were committed in Washington 
County. The death which ensued in Pierce County, though it went to 
characterize the acts committed in Washington County, was not an act 
of defendant committed in Wisconsin, but the consequence of his acts 
committed in Washington County, against the peace and dignity of the 
State of Minnesota. We are therefore of opinion that the indictment 
charges the commission of the crime of murder in Washington County, 
and, upon the questions certified to this court by the court below, that 
the demurrer to the indictment should be overruled. Riley v. State, 
9 Humph. 646 ; Com. v. Parker, 2 Pick. 550, 559 ; 1 East, P. C. c. 5, 
§ 128 ; Rex y. Burdett, 4 B. & Aid. 95, 173 ; Grosvenor v. Inhabitants, 
&c., 12 East, 244 ; People v. Gill, 6 Cal. 637 ; State v. Carter, 3 Dutch. 
499; 1 Hale P. C. c 33 ; 1 Bish. Cr. Law, § 83 ; 1 Bish. Cr. Proc. 
S 67 ; 2 Wharton Cr. Law, § 1052.' 

1 Ace. Green v. State, 66 Ala. 40 ; U. S. o. Guiteau, 1 Mack. 498. See also the 
following c:^ses for decision upon the locality of crime : Allison v. Com., 83 Ky. 2.')4 
(rc(.ei\iii.' stolen goods); People u. Arnold, 46 Mich. 268 (conspiracy); Lovelace « 
S:lltl^ \i Lea, 721 (embezzlement). — Ed. 



154 REGINA V. ARMSTRONG. [CHAP. II. 

REGINA V. ARMSTRONG. 

Liverpool Assizes. 1875. 

[Reported 13 Cox C. C. 184.] 

John Akmstrong was charged with the wilful murder of Lawrence 
Harrington, on board the hulk Sent, in the Bonny River, Africa, on 
the 4th of May, 1875.^ . . . 

It was proved in evidence that the ^ent had been a three-masted 
sailing ship, of 1324 tons register, and was registered as a British ship, 
though not British built. That she had for eighteen months at least 
been dismasted, and employed as a floating depot or receiving ship on 
the Bonny Station for a line of commercial steamers trading between 
Liverpool and that port ; that she swung with the tide and floated in 
the tideway of the river, and that -sh e hoisted the R rit.iah pnsjgngt. the 
peak. The general appointments as a ship, boats, etc., remained ; 
the masts had been cut down to form a support for an awning or house 
on deck, but the rigging bad been taken away. The prisoner was mate 
of the Kent, and in the evening of the 4tli day of May he stealthily 
approached the captain as he was standing near the stern and leaning 
over the tafErail of the ship, and took hold of him by the collar of his 
coat and the seat of his trousers and flung him overboard. The body 
of the captain in falling struck the quarter rail or gallery of the Kent, 
and bounded off ; and the back of his head, as was deposed by one 
witness, then struck the gunwale of a boat that was lying moored on 
the port side, leaving marks of blood. The body then fell into the 
water, and was never seen again, though five or six boats were imme- 
diately put out in search. The river was running out very rapidly, at 
the rate of four to five knots an hour. It was at this p^ fint fiJTnr sftvpn 
tpilea broad , and the nearest ship was probably a thousand yards dis- 
tant. The station of the ship was at about seven miles from the bar, 
one and a half miles from the easterlj' or southern shore, and more than 
five from the northern shore. One of the witnesses said the river was 
infested with sharks, and that bathing was forbidden on that account, 
but admitted in cross-examination he had never seen any. 

Cottingham, for the prisoner, submitted . . . that the murder, if 
murder it were, was not committed on board the Kent, and was not a 
completed criminal act on board that ship. That at the utmost there 
had only been an assault on board the ship, and that the ultimate con- 
sequence of the act, where it was only a possible consequence, could 
not be assumed to have occurred on board the ship. . . . 

His Lordship [Archibald, J.] overruled all the objections, and 
pointed out that there was abundant ^nwa/aae evidence that the ship 
was a British ship, and that this had not been rebutted ; that the crime 

1 Only so much of the case as discusses the question of jurisdiction is given. — Ed 



•SECT. VI.J JACKSON V. COMMONWEALTH. 155 

had been committed on board a British ship, and on the high seas, and 
that it was not necessary that the act should have been completed on 
board, as it was a direct consequence of the felonious assault. 

The jury found the prisoner guilty of manslaughter, and he was 
sentenced to twenty years penal servitude. 



JACKSON V. COMMONWEALTH. 

Court of Appeals op Kentucky. 1897. 

IReported 100 Ki/. 239.] 

The defendant and one Walling were indicted for the murder of 
Pearl Bryan in Campbell County, Kentucky. The evidence indicated 
that the two p.ersons accused had attempted to kill the deceased by 
giving her poison in Ohio ; that she became unconscious, and was 
believed by them to be dead ; that they brought her across the Ohio 
River into Kentucky, and there cut off her head, and thus caused her 
-death. The court at the trial charged: "If the jury believe from 
all the evidence beyond a reasonable doubt that the defendant, Scott 
Jackson, wilfully, feloniously, and with malice aforethought, himself 
attempted or aided or abetted or procured another to attempt to kill 
Pearl Bryan, but she was not thereby killed, and that said Scott Jack- 
son, in this county and State, before the 14th day of February, 1896, 
though believing said Pearl Brj-an was then dead, for whatever purpose, 
cut her throat with a knife or other sharp instrument so that she did 
then and there, and because thereof die, they will find said Scott 
Jackson guilty of murder." 

On appeal this charge was held, to be correct. The defendant moved 
for a rehearing.^ 

Du Eelle, J. With great earnestness, force and plausibility two 
contentions are made by the petitions for rehearing in this case and in 
the case of Walling v. Commonwealth : 

1st. That no facts which occurred in the foreign jurisdiction of Ohio 
can be tacked on to facts which occurred in Kentucky for the purpose 
of supplying the elements necessary to constitute the crime of murder 
in Kentucky. 

2d. (And this appears to be the point chiefly relied on) That in 
giving its instructions to the jnrj' the trial court is not authorized to 
refer to any fact which occurred in the foreign jurisdiction. Other 
suggestions are made in the petitions, but in our judgment do not 
require specific response. 

These two contentions may be considered together, as the first is 

1 This shgrt statement of the facts uponwhich the petition for a rehearing is based 
is abridged from the opinion given after the first argument. — Ed. 



156 JA.CKSON V. COMMONWEALTH. [CHAP. II. 

necessarily raised and considered in the decision of the second, and 
so treated in the petition. 

Eednced to its lowest terms, the claim of counsel is that an attempt 
to commit a murder in another State, supposed by the guilty party to 
have been there successful, but in reality completed in this State, 
though by an act not by him believed to be the consummation of his 
purpose, is not in this State punishable. 

^ iiich is nnt n"r r h onli it '^" *^'^ ' "'" By the law of this State a 
crime is punishable in the jurisdiction in which it has effect. Statutes 
in numbers have been passed by the general assembly of this Common- 
wealth providing that jurisdiction shgulri b° had '>^"ritn°'L 2'^ ^^^ county 
JnTvli KJ] the ^rin r n' hfc t i i mf'-'^ fl^i^nib (Chapter 36, article 2/KentucEy 
""Statutes.) Such we believe to have been the common law before such 
enactments. 

Assuming that what the jury found was true, in what State or district 
could the crime be punished ? If not here, where ? If we concede the 
claims of counsel for appellants no serious crime was committed in 
Ohio. Nothing was there done but an ineffective attempt to murder. 
None was committed there. What was done in this jurisdiction was 
only the mutilation of a supposed corpse, and yet the fact, established 
by overwhelming testimony, remains that the crime has been com- 
mitted. Not all the refinements of counsel can lead us from the con- 
clusion that, when a crime has been completed the result of which is a 
death in this Commonwealth, we can take jurisdiction of the oflTence. 

Not for a moment can we admit as law the logical conclusion of 
counsel's argument, namely, tliat there is a variety of murder, which, 
by reason of error in its commission, is not anywhere in any jurisdic- 
tion punishable ; not in Ohio, for the reason that the attempt there 
made was not successful ; not in Kentucky, for the reason that the act 
there done, and which accomplished and completed the actual killing, 
was done upon the supposition that the murder had already been 
accomplished. 

One reliance of the defence upon petition for rehearing is that the 
indictment charges murder by cutting the throat or decapitation, and 
that the instructions permit and require the jury to consider a previous 
attempt to kill in a foreign State and by different means. But in our 
opinion it was not error in the instructions to present to the jurj' evi- 
dential facts which, if found to be true, showed the criminal nature of 
the act by which the offence was completed. 

We see no good reason why we should not consider the motive which 
inspired an attempted crime in another sovereigntj', and the circum- 
stances of the attempt, with tlie view to determine the character, 
ciiminal or not, of the ultimate fact whicli took place in this sov- 
ereignty ; nor is such a determination an invasion of the constitutional 
right of the accused to a speedy " public trial by an impartial jury of 
tiie vicinage." For the accused himself selected the vicinage in which 
the final act occurred, and thus himself gave jurisdiction to the court 



SECT. VI.] STATE V. WYCKOFF. 157 

which determined the criminal character of that act. Nor can we con- 
sider as serious the contention that the ruling of the trial court, approved 
bj- the opinion in this case, is punishment in Kentucky of an oifence 
committed in another jurisdiction, and there again punishable, so as to 
come within the constitutional inhibition against a citizen being twice 
put in jeopardj'. On counsel's own contention no completed crime 
existed in Ohio, and the crime committed, if punishable under this 
State's law, can not further or again be punished there. . . . 

We have carefully examined the immense mass of testimony in the 
case, and see no error to the prejudice of any substantial right of the 
appellant. 

The petition for rehearing is overruled. 



STATE V. WYCKOFF. 
Supreme Court of New Jersey. 1864. 

[Reported 2 Vroom, 65.] 

Beasley, C, J. The defendant was convicted before the Court of 
Oyer and Terminer, on an indictment containing two counts, the first 
of which charges him with the larceny of certain goods of a value ex- 
ceeding twenty dollars, and the other with receiving goods knowing 
them to be stolen. 

It appeared that the defendant was in New York at the time of the 
theft, and while in that state he made an arrangement with one Kelly 
to come into this state and steal the articles in question and to bring 
and deliver them to him in New York. This arrangement was carried 
into effect, — the articles being stolen by Kelly and delivered to the 
defendant in New York. The defendant was not in this state at any 
time, from the inception to the conclusion of the transaction. The 
Court of Oyer and Terminer have asked the advisory opinion of this 
court upon two points : — 

First. Whether proof of the above stated facts will support the 
indictment. 

Second. Has the defendant committed any offence indictable by the 
laws of this state ? 

In regard to the first point, the cir'cumstances proved on the trial 
established the fact that Kelly was guilty of the crime of grand larceny 
in this state. Kelly therefore committed a felony, and consequently, 
as the defendant was not present, either actually or constructively, at 
the commission of the offence, he could not be a principal t herein, but 
was an accessory before tbe_fapt ^ Kelly did the act, and the defend- 



l.'lS STATE V. WYCKOFF. [CHAP. II. 

ant's will contributed to it ; but it was committed while he was too far 
from the act to constitute him a principal. The distinction in felonies 
between the principal and accessories before and after the fact is cer- 
tainly technical, and has been sometimes regarded as untenable ; but 
it is too firmly established to be exploded by judicial authority. It 
has always been regarded, in its essential features, as a part of the 
criminal law of this state, and its existence is recognized both in our 
statutes and in a number of the reported decisions. State v. Cooper, 
1 Green, 373 ; Johnson v. State, 2 Dutcher, 324 ; Cook y. State, 4 
Zab. 845. 

The first count, therefore, charging the defendant as a principal ini, 
the larceny, is not sustained by the evidence. The crime of the acces- 

SOry, be ing rJiHai fnilar-frnm thf i t nf thp p ri n fV[Ta1_ i n^ i t.a fundamentaT" 

Q^aracteristics, must br dirvtjnrtly rlmrgrd in thr plrjidlflrr-, It has 
never been SUpposedThata count containing a statement of facts 
evincive of the fault of the party accused as a principal in a felony, 
was sufficient to warrant the conviction of such party as an accessory.. 
1 Chit. Crim. Law, 271, 2 id. 4 ; Wharton's Prec. of Indict. 97 ; State 
V. Seran, 4 Dutcher, 519. In the case of Rex v. Plant, 7 C. & P. 675,. 
it was expressly held that one indicted as principal in a felony could 
not be convicted of being an accessory before the fact. See also 
Whart. C. L. 115. 

Neither will the second count Of the indictment sustain the convic- 
tion. The evidence shows that the stolen goods were received by the- 
defendant, with guilty knowledge, in the state of New York. But 
this was no offence against the laws of this State. The defendant 
therefore cannot be legally sentenced upon the conviction founded ort 
the present indictment. 

The remaining question is, has the defendant committed any offence' 
indictable by the laws of this State ? 

His act was to incite and procure his agent or accomplice to enter 
this state and commit the felony. If the de fen dant, h;irl hnnn iu this- 
state at th e time of such procurem pnt rand Jjicitement. he would have 
TIetih auiltv as an acce ssory before tbeJ ajCt-t-tnTtr- wbat ho did"wayTfeft eL^ 
out ot tne sta te! Did he thereby become amenable to our criminal 
jurisdiction? 

As the defendant did not act within this state in his own person, th& 
point to be decided is, did he do such act in this state by construction 
or in contemplation of law? 

It IS undoubtedly true that personal presence within the jurisdiction 
in which the crime is committed, is not in all cases requisite to confer 
cognizance over the person of the offender, in the tribunals of the gov- 
ernment whose laws are violated. In some cases the maxim applies. 
Crimen trahit personam. Thus, where a person being within one 
jurisdiction, maliciously fires a shot which kills a man in another juris- 
diction, it is murder in the latter jurisdiction, the illegal act being there 
consummated. So, iu the case of The United States v. Davis, 4 Sumner, 



SECT. VI.] STATE V. WYCKOrF. 159 

485, the defendant was accused of shooting from an American ship 
and killing a man on board a foreign schooner. Chief Justice Story 
said: "The act was, in contemplation of law, done where the shot 
took effect. He would be liable to be punished by the foreign govern- 
ment." The same principle was recognized by this court in the case 
of The State v. Carter, 3 Dutcher, 499. So, when a crime is com- 
mitted by an innocent living agent, the projector of such crime being 
absent from the country whose laws are infringed. Such was the case 
of The People v. Adams, 3 Denio, 190. In this latter case the facts 
were these : The defendant was indicted in the city of New York for 
obtaining money from a firm of commission merchants in that city by 
the exhibition of fictitious receipts. The defendant pleaded that he 
had never been in the State of New York ; that the receipts were 
drawn and signed in Ohio, and that the offence was committed by 
their being presented to the firm in New York by innocent agents em- 
ployed by the defendant in Ohio. It was held that such plea was bad 
and disclosed no defence. A number of authorities maintaining the 
same view will be found collected in the opinion of the judge who 
delivered the decision of the court in the case last cited. 

- The rule, therefore, appears to be firmly established, and upon very 
satisfactory grounds, that where the crime is committed by a person 
absent from the country in which the act is done, through the means 
of a merely material agency or by a sentient agent who is innocent, in 
such cases the offender is punishable wliere the act is done. The law 
implies a constructive presence from the necessity of the case ; 
otherwise the anomaly would exist of a crime, but no responsible 
criminal. 

But the more difficult question remains to be considered, which is, 
— in case of a felony committed here by a responsible agent, who is 
therefore the principal felon, and punishable by our laws, — can the 
procurer, who is an accessory before the fact, and whose acts of pro- 
curement have been done in a foreign jurisdiction, be indicted and 
punished for such procurement in this state? 

The general rule of the law has always been that a crime is to be tried 
in the place in which the criminal act has been committed. It is not 
sufficient that part of such act shall have been done in such place, but 
it is the completed act alone whicli gives jurisdiction. So far has this 
strictness been pushed that it has been uniformly held that if a felony 
was committed in one county, the accessory having incited the prin- 
cipal in another county, such accessory could not be indicted in either. 
This technicality, which, when applied to the several counties of the 
same kingdom or state, appears to have little to recommend it, was 
nevertheless so firmly established that it required the statute of 2 and 
3 Ed. VI. c. 24,^ to abolish it, and this statute has been re-enacted in 

' " Where any murder or felony hereafter shall be committed and done in one 
county, and another person or mo shall be accessory or accessories in any manner ot 
wise to any such murder or felony in any other county, that then an indictment found 



160 STATE V. WYCKOFF. [CHAP. 11. 

this state. Nix. Dig. 199 (Rev. p. 282, § 78). And so in like manner 
tlie same rigor existed in cases in which death ensued out of the Idng- 
dom from a felonious stroke inflicted within it, it being decided that 
neither the principal nor accessory was, under such circumstances, in- 
dictable. This imperfection in the criminal system was removed by 
the statute of 2 Geo. II. c. 21, and which has been substantially copied 
in the third section of the act of this State before referred to in Nix. 
Dig. 200 (Rev. p. 282, § 78). For the rules of law which were thus 
modified by statute, see 3 Inst. 48 ; Lacye's Case, 1 Leo. 270 ; 2 Rep. 93. 

If, then, the accessory by the common law was answerable only in 
the county in which he enticed the principal, and that, too, when the 
criminal act was consummated in the same county, it would seem to 
follow necessarily, in the absence of all statutory provision, that he is 
wholly dispunishable when the enticement to the commission of the 
offence has taken place out of the state in which the felony has been 
perpetrated. Under such a condition of affairs it is not easy to see 
how the accessory has brought himself within the reach of the laws of 
I the offended state. His offence consists in the enticement to commit 
' the crime ; and that enticement, and all parts of it, took place in a 
foreign jurisdiction. As the in p trnm^ntw l' ty '^"'p l^yed w s f « fftris ';^'""" 
ff^'^^Y " ff""* ' ™''*''^ ^''°° ^'" ^" P*^^ '^'' *" '•"^'■'lin from acting, there is no 
room for the doctrine o f a constructive pi-pspnop jp thp procurer. Ap- 
plying to the facts of this case the general and recognized principles 
of law, it would seem to be clear that the offence of which the defend- 
ant has been guilty is not such as the laws of this state can take cog- 
nizance of. We must be satisfied to redress the wrong which has been 
done to one of our citizens, and to vindicate the dignity of our laws 
by the punishment of the wrong-doer who came within our territorial 
limits. As for the defendant, who has never been, either in fact or by 
legal intendment, within our jurisdiction, he can be only punished by 
the .luthority of the State of New York, to whose sovereignty alone he 
was subject at the time he perpetrated the crime in question. 

The principal involved in this case has not often been the subject of 
judicial consideration, nor has it received much attention from the text- 
writers. But in the few cases to be found in the reports upon the 
point a view similar to the above has been expressed. The case of The 
State V. Moore, 6 Foster, 448, was, in all its features, identical with 
that now before this court, and the result was a discharge of the pris- 
oner, on the ground that the crime of the accessory had not been 
committed within the jurisdiction of New Hampshire. 

The case Mc parte Smith, 6 Law Reporter, 57, was to the same 

or taken against such accessory and accessories upon the circumstance of such matter 
before the justices of the peace, or other justices or commissioners to enquire of felonies 
in the county where such offence.s of accessory or accessories in any manner of wise shall 
be committed or done, shall be as good and effectual in the law as if the said principal 
offence had been committed or do^e within the same county where the same indictment 
against such accessory shall be found." 2 & 3 'Ed. 6, c. 24, § 4. — Ed. 



SECT. VI.] STATE V. WYCKOFF. 161 

effect. The same principle was again considered, though in a some- 
what different aspect, in the case of The State v. Knight, 1 Taylor's 
Rep. (N. C.) 65, and the opinion intimated by the court entirely ac- 
corded' with those expressed in the two cases first above cited. These 
are the only judicial examinations of the matter now in hand which I 
have met with in the course of my research. 

Upon authority, then, as well as upon principle, I think the present 
indictment cannot be sustained, and that the defendant has not coni- 
mitted any offence which is indictable by force of tlie laws of this 
istate. 

Let the Court of Oyer and Terminer be advised accordingly.' 



Penal Code of New York, § 32. An accessory to a felony may 
be indicted, tried, and convicted, either in the county where he be- 
came an accessory, or in the county where the principal felon}' was 
■committed. 



Mass. R. L. ch. 215, § 43. [An accessory before the fact] may be 
indicted, tried, and punished in the same county in which the princi- 
pal felon might be indicted and tried, although the counselling, hiring, 
or procuring the commission of such felony was committed within or 
without this commonwealth, or on the high seas.^ 

1 Ace. State v. Chapin, 17 Ark. 561 ; State v. Moore, 26 N. H. 448. But see State 
V. Grady, 34 Conn. 118 ; State b. Ayres, 8 Baxter, 96. — Ed. 
' See Com. v. Pettes, 114 Mass. 307. — Ed. 



162 LINDSBY V. STATE. [CHAP. II. 



LINDSEY V. STATE. 
Supreme Court op Ohio. 1882. 

[Reported 38 Ohio State, 507.] 

The plaintiff in error, and one John T. Morris, were jointly indicted 
in Jefferson County. Tlie charge is that they did unlawfully and 
telouiously u tter and |ii,ihliah in "inid noiintij as true and genuine, a 
certain false, forged, and count erfeit deed of real est ate, purporting to 
1)6 executed and acknowledged by Maurice F. Thornton and wife, be- 
tore Herman E. Shuster, a notary public of the State of Missouri, and 
lo convey certain lands in that State to James TurnbuU, of Jefferson 
County, Ohio. 

The plaintiff in error had a separate trial, and was convicted and 
sentenced. 

The evidence tended to show that the deed was a forgery, executed 
lu St. Louis by the notary public by the procurement of Lindsey, who 
then and thereafter, until forcibly brought to Ohio, was never in this 
State ; that this deed was delivered by Lindsey or his agent to his co- 
defendant Morris (who is awaiting his trial), and by him was sent by 
mail to T. & D. Hall, real estate agents in Steubenville, through whom it 
was uttered and published by a sale of the land to TurnbuU. T. & D. 
Hall were the innocent agents in the transaction, and received and 
accounted for the purchase-money, less commissions.^ 

Johnson, J. Two questions are presented on the foregoing state- 
ment ; — 

First. Had the court jurisdiction over the plaintiff in error? and, 

Second. Were the conveyances of other lands admissible for the 
purpose of showing guilty knowledge?^ 

First. As to the jurisdiction of the court ; Is the crime charged an 
extra-territorial crime? Was it committed by the accused in Missouri, 
or in Ohio? 

If hf; vyere indicted for-tha-JQ igery o f this d eed, he co uld not be 
punished in Ohio, as it is conceded that all his acts that constitute 
ihat crime were committed in Missouri. When he procured the notary 
in St. Louis to forge the signatures, and the acknowledgment of the 
grantors, with the criminal intentj the crime of forgery was consum- 
mated in the State of Missouri. Rid;.t.hia "ja nnt. tho phtnigo in tli^ r-i^e. 
^t-tiar. It is for knowingly uttering and publishing as true and genu-' 
ine a false and forged deed. It is wholly immaterial where the forgery 
was committed. 

' Part of the evidence and the arguments of counsel are omitted. 
, " That portion of the opinion which relates to the second question is omitted. 



SECT. VI.] , LINDSEY V. STATE. 163 

The question therefore is, was this deed uttered and published in 
Jefferson County, Ohio, and was Lindsey guilty of this crime? 

That this forged deed was uttered and published in Ohio by T. & D. 
Hall, who supposed it was genuine, is clear from the evidence. 

Now, it is assumed that the jury had evidence to warrant them in 
finding that T. & D. Hall did so utter and publish this deed by the 
procurement of Lindsey. 

The crime was therefore completed or consum mated in Ohio, throug h 
the instr umentality of an innocent ag^ nt. it is wtiolly immaterial 
wUetUer his co-defendant Morris was his confederate or his dupe, as in 
either case the acts of Morris by correspondence mailed in St. Louis 
to T. & D. Hall were simply the means used to consummate a crime 
in Ohio. The crime had its inception in Missouri, but it was com- 
mitted in Ohio by innocent agents. If a letter containing a forged 
instrument is mailed at one place to be sent to another, the venue must 
be laid where the letter is received. 3 Greenl. § 112. 

The crime of uttering and publishing is not complete until the paper 
comes to the hands of some one other than the accused, and if it be 
sent by maU for the purpose of being there used, the crime is not 
consummated until it is received by the person to whom it is to be 
delivered. It is a fundamental principle that a person is responsible 
criminally for acts committed by bis procurement as well as for those 
done in person. The inherent power of the state to punish the utter- 
ing and publication of forged instruments within its territorial limits, 
without regard to the place where the forgery was committed, or pur- 
pose was formed, is essential to the protection of her people. It is_ ^ 
now a genera lly a^oep^^^p^ pHnpipIp that one who in one coun t y or state 
employ s an innoG "n*^^ ggonf in Qi^f^th er to commit a cn'mp, ^' p j j a blp tn 
QieTSter countyOT_statfi. Bobbins v. The State, 8 Ohio St. 131 ; 
TTorris v. The StateTlSOhio St. 217 ; 1 Whart. Grim. Law (7th ed.), 
§§ 210, 278 ; see also Commonwealth v. Macloon, 101 Mass. 1 ; Com- 
monwealth V Smith, 11 Allen (Mass.), 243 ; Commonwealth v. Bland- 
ing, 3 Pick. 304 ; Rex v. Johnson, 7 East, 6.5 ; Wh. Con. of L. §§ 877- 
921 ; People o. Adams, 3 Denio, 190, affirmed 1 N. Y. 173 ; United 
States V. Davis, 2 Sumn. 482 : State ». Wyckoflf, 2 Vroom (N. J.) 68 ; 
Commonwealth u. Gillespie, 7 Serg. & R. 469 ; Stillman v. White Rock 
Co., 3 Woodb. & M. 538 ; Rex v. Garrett, 6 Cox C. C. 260 ; Rex v. 
Jones, 4 Cox C. C. 198 ; State ». Grady, 34 Com. 118.^ 

' Ace. Reg. V. Taylor, 4 F, & F. 511 ; People v. Adams, 3 Den. 190 j 1 N. Y. 173. 
See Reg. «. Finkeletein, 16 Cox C. C. 107. — Ed. 



164 STATE V. CARTER. [CHAP. II. 



STATE V. CARTER. 

Supreme Court of New Jersei 1859. 

[Reported 3 Butcher, 499.] 

Vredenburgh, J. The indictment charges that the defendant, on 
the 29th of December, 1858, in the city of New York, gave one Brusli- 
ingham several mortal bruises, of which, until the 31st of December, 
1858, as well in New York as in Hudson County, in this state, he lan- 
guished, and of which, in said Hudson County, he then died. To this 
indictment the defendant pleaded that the court had not jurisdiction 
of the cause. The defendant, we must assume, was a citizen of the 
State of New York. Nothi ng was dowe byjhe Hpfpnrlgnt in t,||ifi pjt.gt.p 
W hen the blo w i rf n g i v r Uj ^ ' "^I'l im i 'tirn wppp frit nf itfi j u r isdiction, and 
within the jurisdiction oj^the State of New Yor k. The only fact con- 
hected with the offence alleged to have taken place within our juris- 
diction is, that after the injury, the deceased came into, and died in 
this state. This is not the case where a man stands on the New York 
side of the line, and shooting across the border, kills one in New Jer- 
sey. "When that is so, the blow is in fact struck in New Jersey. It is 
the defendant's act in this state. The passage of the ball, after it 
crosses the boundary, and its actual striking, is the continuous act of 
the defendant. In all cases the criminal act is the impinging of the 
weapon, whatever it may be, on the person of the party injured, and 
that must necessarily be where the impingement happens. And whether 
the sword, the ball, or any other missile, passes over a boundary in the 
act of striking, is a matter of no consequence. The act is where it 
strikes, as much where the party who strikes stands out of the state, 
as where he stands in it. 

Here no act is done in this state by the defendant. He sent no mis- 
sile, or letter, or message, that operated as an act within this state. 
The coming_oLlhe paxtyinjuredinto-tbis-state- af ter w ards ^tfas-liis-OffB 
^^^untaryac t, and in no way t .tiP a,pt. cf t.iLa-AHTm?T^?rf if the defend- 
auL is liable here at all, it must be solely because the deceased came 
and died here after he was injured. Can that, in the nature of things, 
make the defendant guilty of murder or manslaughter here ? If it can, 
then for a year after an injury is inflicted, murder, as to its jurisdic- 
tion, is ambulatory at the option of the party injured, and becomes 
punishable as such wherever he may see lit to die. It may be man- 
slaughter, in its various degrees, in one place, murder, in its various 
degrees, in another. Its punishment may be fine in one country, im- 
prisonment, whipping, beheading, strangling, quartering, hanging, OJ 
torture in another, and all for no act done by the defendant in any oJ 
these jurisdictions, but only because the party injured found it con- 
venient to travel. 



SECT. VI.] STATE V. CAETER. 165 

This is not like the case of stolen goods, carried from one stute to 
another, or of leaving the state for any purpose whatever, like that 
for fighting a duel, or of sending a letter or messenger, or message, 
for any purpose, into another state ; for in all these cases the cogni- 
zance is taken for an act done within the jurisdiction. 

If the acts charged in this indictment be criminal in New Jersey, it 
must "be either by force of some statute or upon general principles. 
There is no statute, unless it be the act to be found in Nix. Dig. 184, 
B. 3. But this evidently relates to murder only, and not to man- 
slaughter. 

But I cannot make myself believe that the legislature, in that act, 
intended to embrace cases where the injury was inflicted within a for- 
eign jurisdiction without any act done by the defendant within our 
own. Such an enactment, upon general principles, would necessarily 
be void ; it would give the courts of this state jurisdiction over all the 
subjects of all the governments of the earth, with power to try and 
punish them, if they could by force or fraud get possession of their 
persons in all cases where personal injuries are followed by death. 

AjTjw^f,, in hp piMTni'rmlj mnai-. ho aiion-p f^ to be an offeucc agalust t he 
sovereignty of the government. This is of the very essence of crime 
ptrai^able by human law. H^wcan an act done in on r jnrisflintinn 
be an offe nce against the sovere i|°;nt y pf innth^r' All the cases turn 
upon the question where the act was done. The person who does it 
may, when he does it, be within or without the jurisdiction, as by 
shooting or sending a letter across the border ; but the act is not the 
less done within the jurisdiction because the person who does it stands 
without. This case is not at all like those where the defendant is tried 
in England for a crime committed in one of the dependencies of the 
British empire. There the act is done, and the crime is in fact com- 
mitted against the sovereignty of the British crown, and only the place • 
of trial is changed. 

If , our governme nt takes jurisdiction of this case, it mu st be no t by 
virtu e of any statute, but because it asSUmeB g<ihferal power to i^unis h 
acts maia i n se wherever perpetrated in the world. T he fact of the 
party mjured can give no additional jurisdiction. 

Such crimes may be committed on tlie high seas, in lands where 
there are, or where there are not regular governments established. 
When done upon the high seas, they may be either upon our vessels 
or upon vessels belonging to other governments. When done upon 
our vessels, in whatever solitary corner of the ocean, from the necess- , 
ity of the ease, and by universal acceptance, the vessel and all it con- 
tains is still within our jurisdiction, and when the vessel comes to port 
the criminal is still tried for an act done within onr jurisdiction. But 
we have never treated acts done upon the vessels of other governments 
as within our jurisdiction, nor has such ever been done by any civilized 
government. 

When an act malum in se is done in solitudes, upon land where there 



166 COMMONWEALTH V. MACLOON. £CHAP. II. 

has not yet been formerly extended any supreme human power, it may 
be that any regular government may feel, as it were, a divine commis- 
sion to try and punish. It may, as in cases of crime committed in the 
solitudes of the ocean, upon and by vessels belonging to no govern- 
ment, pro hac vice arrogate to itself the prerogative of omnipotence, 
and hang the pirate of the land as well as of the water. Further than 
this it could not have been intended that our statute should apply. 
But here the act was done in the State of New York, a regularly organ- 
ized and acknowledged supreme government. The act was a crime 
against their sovereignty. That was supreme within its territorial 
limits and in its very nature, and in fact is exclusive. There cannot 
be two sovereignties supreme over the same place at the same time 
over the same subject-matter. The existence of theirs is exclusive of 
ours. We may exercise acts of sovereignty over the wastes of ocean 
or of land, but we must necessarily stop at the boundary of another. 
The allegation of an act done in another sovereignty, to be a violation 
of our own, is simply alleging an impossibility, and all laws to punish 
such acts are necessarily void. 

It is said that if we do not take jurisdiction, the defendant will go 
unpunished, inasmuch as, the party injured not dying in New York, he 
could not be guilty of murder there. But New York may provide by 
law for such cases, and if she does not, it is their fault, and not ours. 
The act done is against their sovereignty, and if she does not choose 
to avenge it, it is not for us to step in and do it for them. 

I think that the Oyer and Terminer should be advised that no crime 
against this state is charged in the indictment.' 



COMMONWEALTH v. MACLOON. 
Supreme Judicial Couet of Massachusetts. 1869. 

[Reported 101 Massachusetts, l.J 

GrEAT, J." The defendants, the one a citizen of Maine, and the 
other a British subject, have been convicted in the Superior Court in 
Suffolk of manslaughter of a man who died within the county in 
consequence of injuries inflicted by them upon him in a British mer- 
chant ship on the high seas. 

The principal question in the case is that of jurisdiction, which 
touches the sovereign power of the Commonwealth to bring to justice 
the murderers of those who die within its borders. This question has 
been ably and thoroughly argued, and has received the consideration 
which its importance demands. 

1 Ace. State v. Kelly, 76 Me. 331. — Ed. 
'' Part ot the opinion only is given. 



SECT. VI.] COMMONWEALTH V. MACLOON. 167 

The statute on which the defendants were indicted, after prescribing 
the punishment for murder and manslaughter, provides that " if a mor- 
tal wound is given, or other violence or injury inflicted, or poison is 
administered, on the high seas, or on land, either within or without the 
limits of this state, by means whereof death ensues in any county 
thereof, such offence may be prosecuted and punished in the county 
where the death happens." Gen. Sts. c. 171, § 19. 

This statute is founded upon the general power of the legislature, 
except so far as restrained by the constitutions of the Commonwealth 
and of the United States, to declare any wilful or negligent act which 
causes an injury to person or property within its territory to be a 
crime, and to provide for the punishment of the offender upon being 
apprehended within its jurisdiction. 

Whenever any act, which, if committed wholly within one jurisdiction 
would be criminal, is committed partlj' in and partly out of that juris- 
diction, the question is whether so much of the act as operates in the 
county or state in which the offender is indicted and tried has been de- 
clared to be punishable by the law of that jurisdiction. 

A good illustration of this is afforded by the cases of bringing stolen 
goods from one jurisdiction to another. It has been held from the 
earliest times that if a thief steals goods in one county, and brings 
them into another, he maj' be indicted in either county, because his 
unlawful carrying in the second is deemed a continuance of the unlaw- 
ful taking, and so all the essential elements of larceny exist in the 
second ; but if he takes the goods by force, although this is robbery in 
the county in which he first takes them, it is but larceny in any county 
into which he afterwards carries them, because no violence to the per- 
son has been used in the latter. 1 Hale P. C. 507, 508, 536 ; 2 Hale 
P. C. 163 ; 4 Bl. Com. 305. If he steals goods on the high seas or in 
a foreign country, and brings them into this state, it is not a common 
law larceny, because there has been no taking against the law which is 
invoked to punish him. Butler's Case, 13 Co. 53; s. c. 3 Inst. 113; 
Commonwealth v. Uprichard, 3 Gray, 434. Yet if the legislature see 
fit to provide that the bringing into the state of goods taken without 
right from the owner in a foreign country, shall be punished here as 
larceny, it is within their constitutional authority to do so. People v. 
Burke, 11 Wend. 129 ; State v. Seay, 3 Stew. 123 ; Hemmaker v. State, 
12 Missouri, 453. By a series of decisions, beginning while the states 
of this Union were colonies of Great Britain, it has been held that a 
bringing into Massa(3husetts of goods stolen in another colony or state 
subject to the same national sovereignty might be indicted here as a 
larceny at common law. Commonwealth v. Andrews, 2 Mass. 14, and 
cases cited ; Commonwealth v. Holder, 9 Gray, 7. And in other states, 
in which the common law has been held not to reach such a case, a 
statute declaring such bringing to be larceny in the state into which the 
goods are brought has been acknowledged to lie valid and binding upon 
tlie courts. Simmons v. Commonwealth, 5 Binn. 619; Simpson v 
State, 4 Hnmpii. 461 : Beal v. State, 15 Ind. 378. 



168 COMMONWEALTH V. MACLOON. [CH IP. II. 

The general principle, that a man who does a criminal act in one 
county or state maj- be held liable for its continuous operation in 
another, has been affirmed in various other cases. Thus a man who 
erects a nuisance in a river or stream in one county or state is liable, 
criminally as well as civijly, in any county or state in which it injures 
the land of another. ^Iwer's Case, 7 Co. 2 b, 3 b ; 2 Hawk. c. 25, 
§ 37 ; Com. Dig. Action, N. 3, 11 ; Abbott, C. J., in The King v. Bur- 
dett, 4 B. & Aid. 175, 176 ; Thompson v. Crocker, 9 Pick. 59 ; Stillman 
V. White Eock Manufacturing Co. 3 Woodb. & Min. 538. And one 
who publishes a libel in another state, in a newspaper which circulates 
in this commonwealth also, is liable to indictment here. Common- 
wealth V. Blanding, 3 Pick. 304. There is no more reagou—against 
holding the vvr ong-doer criminally liable in the county and state wh ere 
Jiis victim diesfrom t he continuous operation _o f his mortal bl ow, tha n 
m those to which the flowing water carries the injurious eff ect of his 
^ uisance to property, or the ci rcuIatiorToniTi libel extends the injury 
to rep utation. 

Criminal homicide consists in the unlawful taking by one human 
being of the life of another in such a manner that he dies within a year 
and a daj- from the time of the giving of the mortal wound. If com- 
mitted with malice, express or implied by law, it is murder ; if without 
malice, it is manslaughter. No personal injuiy, however grave, which 
does not destroy life, will constitute either of these crimes. The injury 
must continue to affect the body of the victim until his death. If it 
ceases to operate, and death ensues from another cause, no murder or 
manslaughter has been committed. But if the bullet remains in the 
body so as to press upon or disturb the vital organs and ultimately pro- 
duce death, or the wound or the poison causes a gradual decline of 
health, ending in death, the injur3- and death are as much the continu- 
ous operation and efl'ect of the unlawful act as if the shot, the stab, or 
the poison proves instantly fatal. The unlawful intent with which the 
wound is made or the poison administered attends and qualifies the act 
until its final result. No repentance or change of purpose, after inflict- 
ing the injury or setting in motion the force by means of which it 
is inflicted, will excuse the criminal. If his unlawful act is the 
efficient cause of the mortal injury, his personal presence at the time of 
its beginning, its continuance, or its result, is not essential. He may 
be held guilty of homicide by shooting, even if he stands afar off, out 
of sight, or in another jurisdiction. 1 Hale P. C. 475 ; People v. 
Adams, 3 Denio, 207; s. c. 1 Comst. 176, 179. If he knowingly lets 
loose a dangerous beast, which runs any distance and then kills a man ; 
or incites a madman or a child not of years of discretion to commit 
murder in his absence, whereby any one is killed ; or, with intent to 
murder, leaves poison with another person to be administered to a 
tliird, and the poison is administered by the same or another innocent 
agent, and causes the death of th^ person intended, or any other ; he is 
responsible as principal, to the same extent as if personally present at 



SECT. VI.] COMMONWEALTH V JIACLOON". 169 

the actual killing. 1 Hale P. C. 430, 431 , 015 , G17 ; Regina v. Micliael, 
9 C. & P. 356 ; s. c. 2 Moody, 120 ; People v. Adams, siqva. And if 
he wilfully inflicts a wound which results fatally, he is not excused by 
the fact that the negligence of the wounded man or the unskilful treat- 
ment of surgeons hastens or contributes to the death. 1 Hale P. C. 
428 ; Commonwealth v. Hackett, 2 Allen, 136. The person who un- 
lawfully sets the means of death in motion, whether through an irre- 
sponsible instrument or agent, or in the body of the victim, is the 
guilty cause of the death at the time and place at which his unlawful 
act produces its fatal result; and, according to the great weight of 
authority, may be then and there tried and punished, under an express 
statute, if not by the common law. 

\ Tbg_cri me not b. pin g mm-rlflr nv iTiTn g lnnghter befni- fi thft, d^f^'l^i "" 

indictment alleging the strokeat _one^dav and place, and the death at 
aft other day a nd'ptace, is goodlfi t alleoes the murder or manslausljter 
tobave been at-the-time-arftd— ptftfta -of the, deat h, but bad if it alleges 
{llaTTlhe defendant killed and murdere3~the deceased at the day and 
place at which the stroke was given, " for," in the words of Lord Coke, 
• " though to some purpose the death hath relation to the blow, yet this 
relation, being a fiction in law, roaketh not the felony to be then com- 
mitted." 2 Inst. 318 ; 1 Hale P. C. 427 ; 2 Hale P. C. 188. So the 
year and day " after the deed, — apres le fait," within which by the 
Statute of Gloucester an appeal of murder must be brought, was held 
to run not from the blow, but from the death, " for before that tniie no 
felony was committed." 2 Inst. 320 ; 1 Hale P. C. 427. And man- 
slaughter arising out of a blow struck in one county, followed by death 
in another, was held by Mr. Justice Littledale to be a felony " begun in" 
one county and completed in another," within the meaning of a modern 
Enghsh statute authorizing such a felony to be indicted in either 
countj'. Rex v. Jones, 1 Russell on Crimes (3d Eng. ed.), 549, 550. 

Whenever at common law murder escaped punishment at the place 
of the death, it was not from a want of authoi'ity in the government, 
but from a defect in the laws regulating the mode of prosecution and 
trial. 

In the beginning of the reign of Edward III., according to Chief 
Justice Scrope, if a man died in one county of a wound received in an- 
other, the murderer might be indicted and arraigned in the county 
where the death happened, " and yet the cause of his death began in 
the other county." Fitz. Ab. Corone, 373. At a later period, it was 
held that where a man was feloniously stricken or poisoned in one 
county, and died in another county, no indictment could be found in 
either county, because both the stroke and the death were necessary to 
constitute the crime, and the jurors of one county could not inquire of 
that which was done in another, " unless," as Lord Hale says, " speci- 
ally enabled b3- act of parliament ; " and for this reason the custom at 
one time prevailed of taking the dead body into the county where the 
mortal stroke was given, and having an indictment found and tried 



170 COMMONWEALTH V. MAOLOON. [CHAP. II. 

there ; and, In earning out the same principle, it was held that an 
appeal of murder, which required no indictment, but was sued out by 
the nearest relation, and prosecuted by the king only in case of the with- 
drawal of the appellant, might be brought in the county of the death, 
although the mortal stroke was given in another county, provided there 
were legal means of summoning a jury for the trial out of both counties, 
but not otherwise. 6 Hen. VII. 10, pi. 7 ; 3 Inst. 48, 49 ; 2 Hale P. C. 
163 ; 1 Stark. Crim. PI. 3, and notes. 

/ The St. of 2 & 3 Edw. VI. c. 24, begins with declaring, " Forasmuch 
as the most necessary office and dutj- of law is to preserve and save 
the life of man, and condignly to punish such persons that unlawfully 
and wilfully murder, slay, or destroy men," and, after- reciting the de- 
fects in the previous laws, enacts, "for redress and punishment of 
which offences and safeguard of man's life," that " where any person 
or persons hereafter shall be feloniously stricken or poisoned in one 
county, and die of the same stroke or poisoning in another county, then 
an indictment thereof founden by jurors of the county where the death 
shall happen, whether it shall be founden before the coroner upon the 
sight of such dead bodj', or before the justices of peace or other justices 
or commissioners which shall have authority to inquire of such offences, 
shall be as good and effectual in the law, as if the stroke or poisoning 
had been committed and done in the same county where the party shall 
die, or where such indictment shall be so founden ; anj' law or usage to 
the contrarj' notwithstanding." That statute, passed within a centurj- 
t before the settlement of Massachusetts, and manifestly suitable to our 
condition, would seem to have been part of our common law. Com- 
monwealth V. Knowlton, 2 Mass. 534 ; Report of the Judges, 3 Binn. 
595, 620 ; State v. Moore, 26 N. H. 448. 

In the most ancient times of which we have any considerable records, 
the English courts of common law took jurisdiction of crimes com- 
mitted at sea, both by English subjects and by foreigners. Beufo v. 
Holtham, 25 Edw. I., in Selden's Notes to Fortescue, c. 32; Case of 
the Norman Master and Enghsh Seamen, 40 Assis. 25 ; s. c. Fitz. Ab. 
Corone, 216 ; 13 Co. 53, 54 ; 2 Hale P. C. 12, 13, and notes, and cases 
cited. But after the admiralty jurisdiction had been settled by the Sts. 
of 13 and 15 Ric. II., if a mortal stroke was given on the high sea, and 
the person stricken came to land in England and died there, then, 
according to the rule established before the St. of Edw. VI. in the case 
of two counties, the courts of common law could not try the murderer, 
because no jury could inquire of the stroke at sea, and the admiral 
could not try him, for want of authority to inquire of the death on land. 
3 Inst. 48. 

Both Lord Coke and Lord Hale, however, were of opinion that such a 
murderer could not wholly escape punishment, although they differed 
as to the mode of bringing him to justice Co. Lit. 74 b ; 3 Inst. 48 ; 
2 Hale P. C. 12-20. 

Neither Lord Coke nor Lord Hale suggests any doubt of the rightful 



SECT. VI.] COMMONWEALTH V. MACLOON. 171 

power of the legislature to pass a statute to punish whoever should 
cause death within the retilm by an injury on the high seas. And in 
1729 the parliament of Great Britain passed a statute, declared to be 
" for preventing an}' failure of justice and taking away all doubts 
touching the trial of murders in the cases hereinafter mentioned," by 
which it was enacted that, where any person should be feloniously stricken 
or poisoned upon the sea or at any place out of England, and should 
die of the same stroke or poisoning in England; or where any peison 
should be feloniously stricken or poisoned at any place in England, and 
siiould die of the same stroke or poisoning upon the sea or at any place 
out of England ; in either of said cases the offenders, both principals 
and accessories, might be indicted, tried, convicted and sentenced in 
the countj' in England in which such death-stroke or poisoning should 
happen respectively, with the same effect as if the felonious stroke and 
ileath thereby ensuing, or poisoning and death thereby ensuing, had 
happened in the same county. St. 2 Geo. II. c. 21. That statute did 
not extend to the colonies, and was repealed by St. 9 Geo. IV. c. 31, 
§ 1 ; and no suggestion appears to have been made, while it was lu 
force, of its being limited in its application to British subjects. 4 Bl 
<3om. 303 ; 1 East P. C. 366. The only published exposition of it is in 
an opinion given by Sir James Marriott as advocate-general, who, 
looking upon the subject in the view of the law of nations, wrote : 
" With respect to murders, when persons die in a foreign country of a 
wound received within this realm, or die in this realm of a wound re 
€eived in a foreign country, in either alternative the party giving the 
wound, and his accessor}' or accessories, by St, 2 Geo. II. c 21, must 
be tried in England, the statute considering the cause and effect as one 
continuity of action without interval, in order, to found a domestic juris- 
diction and to reach the crime." Forsyth's Opinions on Constitutional 
Law, 218. In The King v. Farrel, 1 W. Bl. 459, Lord Mansfield 
treated the question whether a murder by a mortal stroke on the high 
seas, from which death ensued in Ireland, was triable in Ireland, as de- 
pending upon the question whether there was any Irish statute upon 
the subject. In fact, the Irish St. of 10 Car. I. contained provisions 
similar to the English Sts. of Edw. VI. and Geo. II. 1 Gabbett's 
Crim. Law, 501. Thus stood the law of the mother country at the 
time of the American Revolution. 

The courts of the United States have held that a mortal stroke on 
the high seas, from which death ensues on land, either in a foreign 
country or within the United States, cannot be indicted under an act ol 
Congress providing for the punishment of murder or manslaughter on 
the high seas. The reason was thus stated by Mr. Justice Washington, 
in the leading case : " The deatli, as well as the mortal stroke, must 
happen on the high seas, to constitute a murder there." '• The present 
is a case omitted in the law ; and the indictment cannot be sustained." 
" It would be inconsistent with common law notions to call it murder; 
but Congress, exercising the coiiPtitutional power to define felonies on 



172 COMMONWEALTH V. MACLOON. [CHAP. II. 

the bigh seas, maj' certainly provide that a mortal stroke on the high 
sea, wherever the death may happen, shall be adjudged to be a felony." 
United States v. M'Gill, 4 Ball. 427 ; s. c. 1 Wash. C. C. 463. United 
States V. Armstrong, 2 Curtis C. C. 446. Congress has accordingly 
passed statutes providing for the punishment, at first of murder only, 
and afterwards of manslaughter, by a blow, wound or poison on the 
high seas, or in any river or baj-, within the admiralty and maritime 
jurisdiction of the United States, and out of the jurisdiction of any 
particular state, followed by death on land. U. S. Sts. 1825, c. 65, § 4 ; 
1857, c. 116, § 1. 

T he legislature of the Com monwealth, from an earlier period, has 

asserted th^ ri p ; h t "^ p""i«hipg~s ucB'inT m ca__in_^''^ ]ii||,^^r"wtrprp they 

take final eftect by destr oying life. At February term, 1795, of this 
court in SutioiK, a conviction of manslaughter at common law was had 
upon an indictment charging that Joseph Hood on the high seas mor- 
tally injured John Antony, hy assaulting and beating him with a rope 
and a stave and his hands and feet, and exposing him without suflBcient 
covering to the cold, winds, and storms, and depriving him of necessary 
food, of all which injuries he languished on the high seas and at Boston 
in said countj', and died at Boston. At August term, 1795, judgment 
was arrested, upon the ground that the indictment charged that the 
cause of death arose on the high seas and not within the jurisdiction of 
this court. Hood's Case, Rec. 1795, fol. 216, and papers on file. It 
was to cure the defect thus declared to exist in our law, that the legis- 
lature at its next session, on the 15th of February, 1796, passed the 
St. of 1795, c. 45, § 2, by which it was enacted that " where any per- 
son hereafter shall be feloniously stricken, poisoned, or injured, on the 
high seas, and without the limits of this Commonwealth, and die of the 
same stroke, poisoning or injury in any county thereof, that then an in- 
dictment thereof, found by the grand jurors of the county where the 
death shall happen, before the justices of the Supreme Judicial Court 
there held, shall be as good and effectual in law as if the stroke had 
been given or the poisoning or injury done in the same county where 
the party shall die," By later statutes, all indictments are returned 
into the lower court. Webster v. Commonwealth, 5 Cush. 386 ; Gen. 
Sts. c. 171, §§ 1 & seq., 21 & seq. But the substance of this provision, 
omitting the word" feloniously" (which might be somewhat difficult of 
application to an act not done under laws of which our courts have 
judicial knowledge) and extended to cases in which the mortal wound 
or injury is given on land without the limits of the Commonwealth, has 
been embodied in the Rev. Sts. c. 133, § 9, and thence, with merely 
verbal changes, in the Gen. Sts. c. 171, § 19, on which this indictment 
is founded. Neither of these statutes appears to have been made the 
subject of judicial exposition. But a law which has been kept on the 
statute book for such a length of time by repeated enactments is not to 
be lightly declared invalid for exceeding the legislative power. And it 
comes within the principle by which the preceding section, relating to 



SECT. VI.] COMMONWEALTH V. MACLOON. 173 

death resulting in one countj' from an unlawful act in another, was held 
valid in Commonwealth v. Parker, 2 Pick. 550, before cited. 

A similar enactment, adding, after " high seas," " or on any other 
navigable waters, " has been sustained upon full argument and consider 
ation by the Supreme Court of Michigan. Tyler v. People, 8 Mich. 320. 

The most plausible form of the argument against the jurisdiction is, 
that the coming into the state is the act not of the wrong-doer, but of 
the injured person, and therefore should not subject the former to the 
jurisdiction, merely because the latter happens to die there. But it is 
the nature and the right of every man to move about at his pleasure, 
except so far as restrained by law ; and whoever gives him a mortal 
blow_assumes the risk of this, and in the view of the law, as in that of 
morals, takes his life wherever he happens to die of that wound ; and 
may be there punished if the laws of the country have been so framed 
as to cover such a case. 

In State ?;. Carter, 3 Butcher, 499, the supreme court of New Jersey 
held that a man could not be indicted in that state for manslaughter by 
mortal bruises given in New York, of which the person injured died in 
New Jersey. But the only statute of that state upon the subject, as 
was observed by Mr. Justice Vredenburgh in delivering the judgment 
of the court, evidently relates to murder onlj-, and not to manslaughter. 
His remarks upon the power of the legislature of New Jersey to provide 
for the punishment of such a case are therefore purely' obiter dicta ; 
and they are unsupported by any reference to authorities, and present 
no considerations which require further discussion. 

Grosvenor v. St. Augustine, 12 East, 244, was not a criminal case, 
but in the nature of an action against the hundred on the St. of 19 
Geo. II. c. 34, § 6, which provided that if any officer of the revenue 
should be beaten, wounded, maimed or killed hy a smuggler, the inhabi- 
tants of the lath in such counties as were divided into laths, and in 
other counties the inhabitants of the hundred, " where such fact shall 
be committed," should pay all damages suffered by such beating, 
wounding or maiming, and one hundred pounds to the executor or 
administrator of each person so killed. It was indeed held that this pen- 
alty might be recovered by the executor of a revenue officer who re- 
ceived a mortal wound in a boat between high and low water mark, of 
which he afterwards died on the high sea, by a shot fired from the shore 
within the lath. But that was upon the construction of the particular 
statute, as appears from Lord Ellenborough's judgment. "The shot 
which produced the death, having been fired from the shore within the 
lath, brings the case within the fair meaning of the act, the object of 
■which was to make the inhabitants of that place where the act was 
done which caused the death answerable for it, in order to interest them 
in repressing the offences against which the act was levelled." All the 
authorities agree that the mere fact of the shot being fired from the 
shore would not give the courts of common law jurisdiction of an in- 
dictment for homicide. Rex v. Cobmbes, 2 Leach (4th ed.), 388 ; 2 
Chalmers Opinions, 217; United States v. Davis, 2 Sumner, 485. 



174 COMMONWEALTH V. MACLOON. [CHAP. II. 

The learned counsel for the defendants much relied on the case of 
Regina v. Lewis, Dearsly & Bell, 182 ; S C. 7 Cox Crim. Cas, 277. 
Tha,t was an indictment on the St. of 9 Geo. IV. c. 31, § 8, which was 
held not to cover the case of a foreigner dying in England from injuries 
inflicted by another foreigner in a foreign vessel upon the high seas. 
But, although at the argument two of the judges, Mr. Justice Coleridge 
and Mr. Baron Martin, expressed doubts whether parhament could 
legislate for the punishment of such a crime, none of the judges except 
Mr. Justice Crompton denied the power ; Lord Chief Justice Coekburn 
suggested that the section under which the indictment was found, taken 
in connection with the next preceding section, relating to murder or 
manslaughter in a foreign country, which was in terms limited to 
British subjects, must be equally limited ; and after advisement the 
opinion of the court was put upon that ground only. The case of Nga 
Hoong V. The Queen, 7 Cox Crim. Cas. 489, was decided upon like 
(Sonsiderations. Both of those cases, therefore, merely held that the 
whole tenor of the statute in question showed that it was not intended 
to cover cases of foreigners sailing on the high seas under a foreign 
flag , applying the same rule of construction as the Supreme Court of 
the United States in United States v. Palmer, 3 Wheat. 631-6-34, and 
United States v. Pirates, 6 "Wheat. 195-197. Whether an explicit 
statute of the state where a murdered man dies will warrant the in- 
dictment and trial of his murderer if found within the jurisdiction is 
quite a different question. 

Neither of the statutes of the Commonwealth upon this subject has 
ever contained anj- yrords limiting the description of the persons by 
whom the offence might be committed : and the existing statute clearly 
manifests the intention of the legislature to punish all who without 
legal justification cause the death of any person within the Common 
wealth, wherever the first wrongful act is done, or of whatever country 
the wrong-doer is a citizen. The power of the Commonwealth to punish 
the causing of death within its jurisdiction is .wholly independent of the 
power of the United States, or of the nation to which the vessel be- 
longs, to punish the inflicting of the injury on the high seas. And upon 
full consideration the court is unanimously of opinion that there is 
nothing in the Constitution or laws of the United States, the law of 
nations, or the Constitution of the Commonwealth, to restrain the legis- 
lature from enacting such a statute. 

Mxceptions overruled. 



SJBOT. VI.J PEOPLE V. BOTKIN. 175 

PEOPLE V. BOTKIN. 

StrPBBME COTIKT OP CALIFORNIA. 1901. 
[Eeporied 132 Cal. 231.] 

Gaeottttb, J. Defendant has been convicted of the crime of mur- 
der, and prosecutes this appeal. The charge of the court given to the 
jury upon the law contained declarations which were held to be unsound 
in People v. Verneseneckockockhoff, 129 Cal. 497. In view of the 
decision in that case, the attorney-general concedes that the judgment 
should be reversed and the cause remanded to the trial court for 
further proceedings. ButdefendanLdaiins-JMt--sIie-js--4iot-4riable--a| 
all b£_tli&je©»»'lj» uf Lhly Hlliti?>and this contention should now be passed 
upon. For if maintainable a second trial becomes a useless expenditure 
of money, time, and labor, and necessarily should not be had. 

For the purposes of testing the claim of lack of jurisdiction in the 
courts of California to try defendant, the facts of this case may be 
deemed as follows : Defendant, in the city and county of San Francisco, 
state of California, sent by the TTniffe'^ Sf-.gtpg mail tg TT.H ^abeth D un- 
ning, of Dover, Delawa rff, a ^"^ "f pninr.iiiirl nmirly, with intent that 
said" Elizabeth Dunning should eat of the candy and her death be 
caused thereby. The candy was received by the party to whom ad- 
dressed, she partook thereof, and her death was the result. Upon 
these fact§ may the defendant be charged and tried for the crime of 
murder in the courts of the state of California? We do u nt find it 
necessary to declare what the true rule may be at comm on IfiT vp^n 
ihis st ate of facts, fpr, in onr npip'on , tll(^ ntntutn nt thn itatr is broad 
enough to cover a case of the kind here disclosed. There can be no 
question but that the legislature of this state had the power to declare 
that the acts here pictured constitute the crime of murder in this state, 
and we now hold that the legislative body has made that declaration. 

Section 27 of the Penal Code reads as follows : — 

"The following persons are liable to punishment under the laws of 
this state : — 

"1. All persons who commit, in whole or in part, any crimewithiii 

this sta,te ; 

"'^^ All who commit larceny or robbery out of this state, and bring 
to, or are found with the property stolen, in this state ; 

"3. All who, being out of this state, cause or aid, advise or en- 
courage, another person to commit a crime within this state,, and are 
afterwards found therein." * 

Subdivision 1 covers the facts of this case. The acts of defendant 
constituted murder, and a part of those acts were done by her in this 
state. Preparing and sending the poisoned candy to Elizabeth Dun- 
ning, coupled with a murderous intent, constituted an attempt to 



176 PEOPLE V. BOTKIN. [CHAP. II. 

commit murder, and defendant could have been prosecuted in this state 
for that crime, if, for any reason, the candy had failed to fulfill its 
deadly mission. That being so, — those acts being sufficient, standing 
alone, to constitute a crime, and those acts resulting in the death of 
the person sought to be killed, — nothing is plainer than that the 
crime of murder was in part committed within this state. The murder 
being committed in part in this state, the section of the law quoted de- 
clares that persons committing murder under those circumstances "are 
liable to punishment under the laws of this state.'' The language 
quoted can have but one meaning, and that is : a person committing 
a murder in part in this state is punishable under the laws of this state, 
the same as though the murder was wholly committed in this state.- 

Counsel for defendant insist that this section contemplates only 
offences committed by persons who, at the time, are without the state. 
This construction is not sound. For as to subdivision 1, it is not at 
all plain that a person without the state could commit, in whole, a 
crime within the state. Again, if the crime in whole is committed 
within the state by a person without the state, such a person could 
not be punished under the laws of this state, for the state has not pos- 
session of his body, and there appears to be no law by which it may 
secure that possession. Indeed, all of the subdivisions of the section 
necessarily contemplate a case where the person is, or comes, within the 
state. If the framers of the section had intended by subdivision 1 to 
cover the case of persons only who were without the state when the 
acts were committed which constitute the crime, they would have in- 
serted in the section the contingency f&und in the remaining sub- 
divisions, which subdivisions contemplate a return to the state of the 
person committing the crime. It is plain that the section by its 
various provisions was intended to embrace all persons punishable 
under the laws of the state of California. The defendant, having 
committed a murder in part in the state of California, is punishable 
under the laws of the state, exactly in the same way, in the same 
courts, and under the same procedure, as if the crime was committed 
entirely' within the state. 

For the foregoing reasons the judgment and orders are reversed and 
the cause remanded. 



^^'^l- !•] KEX V. MARTIN. 177 

CHAPTER III. 
THE OFFENCE: MODIFYING CIRCUMSTANCES. 



SECTION I, 
Participation of a PMic Officer. 

REX V. MARTIN. 

Crown Case Reserved. 1811. 

[Reported Russell ^ Ryan, 196.] 

The defendant was tried before Mr. Baron Wood, at the Lent 
assizes, for Northamptonshire, in the year 1811, upon an indictment for 
a misdemeanor in unlawfully aiding and assisting Antoine Mallet, a 
prisoner at war detained within certain limits at Northampton, to 
escape and go at large out of the said limits, and conducting him 
and bringing him to Preston Turnpike Gate, at Northampton, with 
intent to enable and assist him to escape and go at large out of this 
kingdom to parts bej'ond the seas. 

The case appeared to be this. 

The defendant lived at "Wantage, in Berkshire ; she came to Newport 
Pagnell, and there hired a post-chaise to take her to Northampton, and 
back. The post-boy drove her to Northampton, where she got out, and 
the post-boy went to his usual inn, with orders to return to the place 
where he set her down, after he had baited and rested his horses. The 
post-boy in abbut an hour returned, took the defendant up again in 
Northampton, and proceeded towards Newport, and when they had just 
got without the town (and within the limits allowed to the prisoners of 
war, being one mile from the extremity of the town), she called to the 
post-boy to stop and take up a friend of hers that was walking along 
the road. The post-boj' stopped, and Mallet got in, and they pro- 
ceeded together to Preston Turnpike Gate (which is without the afore- 
said limits), in the road to Newport, when they were both stopped and 
apprehended by the commissary, or agent for French prisoners and his 
assistant who had watched them. 

It appeared in evidence that there was no real escape on the part of 
Mallet, but that he was employed by the agent for French prisoners, 
under the direction of the Transport Board to detect the defendant, who 
was supposed to have been instrumental in the escape of many French 
prisoners from Northampton, and that all the acts done b}' Mallet, the 
contract for the money to be paid to the defendant, and the place to 
which they were to go, before they would be stopped, were previoiish' 
concerted between the agent for the prisoners and Mallet, and Mallet 
had no intention to go away or escape. 



178 GEIMM V. UNITED STATES. [CHAP. in. 

It was objected to by the counsel foi- the defendant that the commis- 
sarj-, having given license to Mallet to go to the place he did go to, had 
enlarged the limits of his parole to that place, and therefore Mallet 
could not be said to have escaped, nor could the defendant be said to 
have assisted him in escaping out of the limits of his parole. 

The learned judge proceeded in the trial, and the defendant was 
convicted, but he respited the judgment and reserved the point for the 
consideration of the judges. 

In Trinity term, 15th June, 1811, all the judges met (except Law- 
rence, J.,) when they held the conviction wrong, inasmuch as the 
prisoner never escaped or intended to escape. 



GRIMM V. UNITED STATES. 
Supreme Court op the United States. 1895. 

\^Reported 156 U. S. 604.] 

Indictment under Rev. St. § 3893 for mailing obscene pictures.^ 
Brewer, J. . . . A final matter complained of grows out of these facts : 
It appears that the letters to defendant — the one .signed " Herman 
Huntress," described in the second count, and one signed "William W. 
AVaters," described in the fourth count — were written by Robert W. 
McAfee; that there wprp r^n such persons as Huntress an d-WrrCfers; 
that McAfee was and had been for years a postofflce inspector in the 
employ of the United States, and at the same time an agent of the 
Western Society for the Suppression of Vice ; that for some reasons 
not disclosed by the evidence McAfee suspected that defendant was 
engaged in the business of dealing in obscene pictures, and took this 
method of securing evidence thereof; that after receiving the letters 
written by defendant, he, in the name of Huntress and Waters, wrote 
for a su]2p]£of t.hp nint^Drpa, gnr| rf;f;pJvprl from dcfendajili p;iclfngp'^ lOf 
Jres which werejeoaeed ed to be obsc ene. Upon^hese facts it is 
"insisted that the conviction cannot be sustained because the letters of de- 
fendant were deposited in the mails at the instance of the govern- 
ment, and thi'ough the solicitation of one of its officers ; that thej' were 
directed and mailed to fictitious persons ; that no intent can be imputed 
to defendant to convey information to other than the persons named 
in the letters sent bj' him, and that as they were fiotitious persons 
there could in law be no intent to give information to any one. TM»-- 
objection was properly nvprnilpij^ b y the trial court. There has been 
anxuli dlHi;u«ylUli as tu tllfe lelations of detecETves to crime, and counsel 
for defendant relies upon the cases of United States v. Whittier, 5 
Dillon, 35 ; United States v. Matthews, 35 Fed. Rep. 890 ; United 
States V. Adams, 59 Fed. Rep. 674 ; Saunders v. People, 38 Michigan, 

1 The statement of facta and part of the opinion, dealing with the sufficiency of 
tlie indictment, are omitted. — Ed. 



BfiCT. I.] GRIMM V. UNITED STATES. 179 

218, in support of the contention that no conviction can be sustained 
under the facts in this case. 

It is unnecessary to review these eases, and it is enough to say that 
we do not think they warrant the contention of counsel. It does not 
^pear that it wa s the purpose of the po.'jt-offi fp i nspector to -kidm ^HjM' 
solicit the commission of a crime, but it was to asce rtain whether the 
'defe Bdanit wiiij_ feijg3gg^ ^ an unlaw lurTnisiness" The merefacts that 
the letters were written under an assumed name, and that he was a 
government ofHcial — a detective, he may be called — do not of them- 
selves ■ constitute a defence to the crime actually committed. The 
ofHcial, suspecting that the defendant was engaged in a business offen- 
sive to good morals, sought information directly from him, and the 
defendant responding thereto, violated a law of the United States bo- 
using the mails to convey such information, and he cannot plead in 
defence that he would not have violated the law if^inquiry had not 
been made of him by such government official. The authorities in 
support of this proposition are many and well considered. Among 
others reference maj' be made to the cases of Bates v. United States, 
10 Fed. Rep. 92, and the authorities collected in a note of Mr. Whar- 
ton, on page 97 ; United States v. Moore, 19 Fed. Rep. 30, United 
States V. Wight, 38 Fed. Rep. 106, in which the opinion was delivered 
by Mr. Justice Brown, then District Judge, and concurred in by 
Mr. Justice Jackson, then Circuit Judge ; United States v. Dorsey, 
40 Fed. Rep. 752; Commonwealth v. Baker, 155 Mass. 287, in which 
the court held that one who goes to a house alleged to be kept for 
illegal gaming, and engages in such gaming himself for the express 
purpose of appearing as a witness for the government against the pro- 
prietor, is not an accomplice, and the case is not subject to the rule 
that no conviction should be had on the uncorroborated testimony 
of an accomplice ; People v. Noelke, 94 N. Y. 137, in which tlie same 
doctrine was laid down as to the purchaser of a lottery ticket, who 
purchased for the purpose of detecting and punishing the vendor ; 
State V. Jansen, 22 Kansas, 498, in which the court, citing several au- 
thorities, discusses at oome length the question as to the extent to which 
participation by a detective affects the liability of a defendant for 
a crime committed by the two jointly ; State v. Stickney, 53 Kansas, 
308. But it is unnecessary to multiply authorities. The law was 
actually violated by the defendant ; he placed letters in the post- 
ofBce which conveyed information as to where obscene matter could 
be obtained, and he placed them there with a view of giving such infor- 
mation to the person who should actually receive those letters, no 
matter what his name ; and the fact that the person who wrote under 
these assumed names and received his letters was a government 
detective in no manner detracts from his guilt. 

These are all the questions presented by counsel. We see no error 
in the rulings of the trial court, and the judgment is, therefore. 

Affirmed. 



i 



180 PEOPLE V. MILLS. [CHAP. III. 



PEOPLE V. MILLS. 
Court of Appeals of New York. 1904. 
[Reported 178 A^.T. 274.] 

Indictment for theft of public records. The defendant was con- 
victed of an attempt to comrait larceny of the records. The defendant, 
desiring to have a certain indictment removed from the records, offered 
an assistant district attorney a bribe to remove and give it np. 
The district attorney being informed of the scheme directed his assist- 
ant seemingly to comply with it ; the assistant thereupon, for the pur- 
pose of apprehending the defendant, removed the indictment and handed 
it to the defendant, who was thereupon arrested by police officers in 
waiting. , A judgment of conviction was affirmed by the Appellate Divi- 
sion, and an appeal was taken.^ 

Vann, J. The indictments against Dr. Flower were records or doc- 
uments iiled in a public office, under the authority of law. (Code Grim. 
Pro. § 272, Code Civ. Pro. § 866.) They were the property of the 

state and gjyilfnl nnrl unlawful rpmnval nf them constituted a crime 

iinHfii- aeo t i inn Q i j nf tlin J ? eiin.1 Cod e. Any one who unlawfhlTy obtainea* 
or appropriated them was guilty of grand larcen}' in the second degree, 
according to the provisions of another section of the same statute. 
(Penal Code, § 631.) Whoever is guilty of violating either section may 
be convicted of an attempt to commit the offence specified therein, 
even if it appears on the trial that the crime was fully consummated, 
unless the court in its discretion discharges the jury and directs the 
defendant to be tried for the crime itself, which was not done in the 
case before us. (Code Grim. Pro. §§ 35 and 685). The jury found 
the defendant guilty of an attempt both to remove and to steal the indict- 
ments, and after affirmance by the Appellate Division we are confined 
in our review to such questions as were raised by exceptions taken 
during the trial. 

In view of the able and exhaustive opinion of the Appellate Division, 
the only question we feel called upon to consider is that raised by the 
challenge of the learned counsel for the appellant in the nature of 
a demurrer to the evidence. He claims that even on the assumption 
that all the evidence for the prosecution is true, still the facts thus 
proved do not constitute the crime charged in either count of the 
indictment. His argumen t is that th e_a.bj°"ti "f thfi '^'°t.'-i<ij ^ttorncy 
was not to det e^tTb ut to create a crim e, and that no crime was com- 
"mitted by the defendant in taking the indictments into his possession, 
because he t opk them with the consent nf the state , y r. rrprnnrnt-pfl hy 
thedis trict attorn ey. 

" The flaw in this argument is found in the fact that the records were 
the propertj' of the state, not of the district attorne}', and that the latter 

" r 
1 This ^ort statement is substituted for the longer statement of facts by the Repor- 



ter. Part^f the opinion is omitted. — Ed. 



SECT. I.j PEOPLE V. MILLS. 181 

could not lawful!}' give them awa}' or permit them to be taken by the 
defendant. Purit>' of intention only could prevent the action of the 
district attorney from being a crime on his part. This is true also as 
to the detective, for if either had in fact intended that the defendant 
should permanently remove the indictments, and steal, appropriate or 
destroy them, he would have come within the statute. Neither of those 
officers represented the state in placing the records where the defendant 
could take them, but each was acting as an individual only. Neither 
had the right or power, as a public officer, to deliver them to the de- 
fendant, and if either had acted with an evil purpose, his act would 
have been criminal in character. . . . 

We shall not review the authorities cited on either side, for that dutj' 
has been so thoroughly discharged by the Appellate Division that we 
can throw no further light upon the subject. We merely state that an 
important distinction between this case and those relied upon by the 
appellant is found in the difference between public and private owner- 
ship of the property taken bj' the accused. In most cases some third 
person is Injured by the crime and is directly or indirectly the com- 
plainant, but in this case the state was, as it must be in all criminal 
cases, the prosecutor and it was also the injured part}', for its propertj' 
was the subject of the attempt at larceny. Tf ax^ jp dividual ow ner v-ol— 
untarily delivers his property to one who w ishes to steal it there is n o 
trespass, but wBBti the pro perty ot t h£__ sr n te is de livered by a ay one, 
un der any cii cuu isLaijiTfrT^n finy po>^»" f"v t.ho pnrpns^ r»f having him 
steal it and he tak es it iiv(v2j2i.° pftggQgg''-'" "g'Mi intf"'' *n °^°''' ^^i timi-o 

i s a. trespass and TIIP fllt"^*^ J'l f1 "P"^ The state did not solicit or 

persuade or tempt the defendant, any more than it took his money 
when he handed it over to the detective. Neither did the district attor- 
ney, as such, but Mr. Jerome did, acting as an individual, with the best 
of motives, but without authority of law and, hence, his action did not 
bind the state. White the courts neither adopt nor approve the action 
of the officers, which they hold was unauthorized, still they should not 
hesitate to punish the crime actually committed by the defendant. It 
is their dut}' to protect the innocent and punish the guilty. We are 
asked to protect the defendant, not because he is innocent, but because 
a zealous public officer exceeded his powers and held out a bait. _lChe 
courts dp ""t ^""*^ ^ft '"^'' '^^'^ ^'^^'^ out the V'qit^"*' t,*^ spp wh" t^-ilijt 
When it was found that the aerendant tooKinto his possession tlie 
property of the state with intent to steal it, an oiTence against public 
justice was established and he could not insist as a defence that he 
would not have committed the crime if he had not been tempted by a 
public oflicer whom he thought he had corrupted. He suppo s ed he had 
bought the assistant dintrirt nttnilliX- S't' P " ^" hnnrlorl n Kp. r the mone y, 
but he knew~Ee~Ead not bought the state of N fivr Yoi'k and , hence, that 
the assistant had no right to give him its property for tlie purpose of 
enabling him to steal it. The judgment of conviction should be affirmed.' 
1 O'Beien and Baktlett, JJ., delivered disaenting opinions. — Ed. 



182 McDANIEL'S case. [chap. III. 

SECTION 11. 
Aoquiescence of the Injured Party. 

McDANIEL'S CASE. 
Crown Case Reskrved. 1755. 

[Reported Foster C. L. 121.] 

At the Old Bailey session in December, 1 755, Justice Foster pro- 
nounced the judgment of the court in the case between the King and 
Macdaniel and others, to the effect following : — 

The indictment chargeth, that at the general gaol-delivery holden at 
Maidstone in the county of Kent, on the 13th of August in the twenty- 
eighth year of the King, Peter Kellj' and John Ellis were bj' due course 
of law convicted of a felony and robberj' committed by them in the 
King's highway in the parish of Saint Paul Deptford in the countj' of 
Kent, upon the person of James Salmon one of the prisoners at the bar, 
and that the prisoners Stephen Macdaniel, John Berry, James Eagen, 
and James Salmon, before the said robbery, did in the parish of Saint 
Andrew Holbourn in this city, feloniouslj' and maliciously comfort, aid, 
assist, abet, counsel, hire, and command the said Peter Kelly and John 
Ellis to commit the said felony and robber^'. 

On this indictment the prisoners have been tried, and the jury have 
found a special verdict to this effect. 

That Kelly and Ellis were by due course of law convicted of the said 
felony and robbery. 

That before the robbery all the prisoners and one Thomas Blee, in 
order to procure to themselves the rewards given by act of Parliameijit 
for apprehending robbers on the highway, did maliciously and feloni" 
ously meet at the Bell Inn in Holbourn in this city ; and did then and 
there agree that the said Thomas Blee should procure two persons to 
commit a robbery on the highway in the parish of Saint Paul Deptford, 
upon the person of the prisoner Salmon. 

That for that purpose they did all maliciouslj' and feloniously con- 
trive and agree that the said Blee should inform the persons so to be 
procured that he would assist them in stealing linen in the parish of 
Saint Paul Deptford. 

That in pursuance of this agreement, and with the pri-vity of all the 
prisoners, the said Blee did engage and procure the said Ellis and Kelly 
to go with him to Deptford in order to steal linen ; but did not at any 
time before the robbery inform them or either of them of the intended 
robbery. 

That in consequence of the said agreement at the Bell, and with the 
privity of all the prisoners, the said Ellis and Kelly went with the said 
Blee to Deptford. 



SECT, ii.j mcdaniel's case. 183 

That the said Blee, Ellis, and Kelly being there, and the prisoner 
Salmon being likewise there waiting in the highway in pursuance of the 
said agreement, the said Blee, Ellis, and Kelly feloniouslj' assaulted 
him, and took from his person the money and goods mentioned in the 
indictment. 

They farther find that none of the prisoners had any conversation 
with the said Ellis and Kelly or either of them previous to the robbery ; 
but they find, that before the robbery the prisoners Macdaniel, Eagen, 
and Berry saw the said Ellis and Kelly, and approved of them as per- 
sons proper for the purpose of robbing the said Salmon. 

But whether the prisoners are guilty in manner as charged in the 
ip/H/^fry^Ppt, thi^Y pray the advice of the court. ' " 

This special verdict hath been~'ai^ued before all the judges of 
England.^ 

It is expressly found that Salmon was party to the original agree- 
ment at the Bell ; that he consented to part with his money and goods 
under color and pretence of a robbery ; and that for that purpose, and 
in pursuance of this consent and agreement, he went to Deptford, and 
waited there till this colorable^ robbery was effected. 

This being the state of the case with regard to Salmon, the judges 
are of opinion that in consideration of law no robbery was committed 
on him. His property was not taken from him against his wiU. 

I come now to the case which I promised at the beginning to consider 
and to distinguish from the present case. One Norden, having been 
informed that one of the early stage-coaches had been frequently robbed 
near the town by a single highwayman, resolved to use his endeavors to 
apprehend the robber. For this purpose he put a little money and a 
pistol into his ppcket, and attended the coach in a post-chaise, till the 
highwayman came up to the company in the coach and to him, and pre- 
senting a weapon demanded their money. Norden gave him the little 
money he had about him, and then jumped out of the chaise with his 
pistol in his hand ; and with the assistance of some others took the 
highwayman. 

The robber was indicted about a year ago in this court for a robbery 
on Norden, and convicted. And very properly, in my opinion, was he 
convicted. 

But that case dlffereth widely from the present. In that case Norden 
set out with a laudable intention to use his endeavors for apprehending 
the highwayman, in case he should that morning come to rob the coach, 
which at that time was totally uncertain ; and it was equally uncertain 
whether he would come alone or not. I n the case now under cons idera^ 
tirmthr r r wft n a i nni t i drl i l i l i li rnnipirnpy hrtwrrn htilmnn nnn the 
restof the prisoners, that his propfMJj i hniild hv tikfn fr^m him 'iH °r 
thf\JrsTict\e(\ nnd i\\ii\W ill ii inlil iilry^ and time, place, and every other 
circumstance were known to Salmon beforehand, and agreed to by him, 

1 Part of the case is omitted. 



184 eggington's case. [chap. hi. 

In Norden's case there was no concert, no sort of connection between 
him and the highwayman ; nothing to remove or lessen the difficult}- or 
danger Norden might be exposed to in the adventure. In the present 
case there was a combination between Salmon and one at least of tne 
supposed robbers. I mean Blee. And though Salmon might not know 
the persons of Ellis and Kelly ; yet he well knew that they were brought 
to the place b}' his friend Blee, and were wholly under his direction. 

So widely do these cases differ ! 

TcLConclude. all the pr i«'''"p^™-h a.Ye been guilty of a most wicked an d 

detesta ble consp jxacy- to rend ^i^a . very salutary law subservient t o their 

-vrteT'corrupt vipwg_ R^it, grpgt; MS tihpir offence is, it doth not amount to 

Jeiony,__^nct "therefore the judgment of the court isTESt Uie^ be all 

discharged of this indictment.-' 



EGGINGTON'S CASE. 
Ckown Case Eesbev-ed. 1801. 

[Reported 2 East, Pleas of the Crown, 666.] 

It appeared that the prisoners, intending to rob Mr. Boulton's manu- 
factory at Soho, had applied to one Phillips his servant, who was em- 
ployed there as a watchman, to assist them in the robber^'. Phillips 
assented to the proposal of the prisoners in the first instance ; but 
immediately afterwards gave information to Mr. Boulton, the principal 
proprietor, and in whom the propertj' of the goods taken (together 
with other persons his partners) was laid ; telling him what was in- 
tended, and the manner and time the prisoners were to come ; that 
they were to go into the counting-house, and that he was to open the 
door into the front yard for them. In return, Mr. Boulton told him to 
carrj' on the business ; that he (Boulton) would bear him harmless ; 
and Mr. Boulton also consented to his opening the door leading to the 
front yard, and to his being with the prisoners the whole time. In con- 
sequence of this information, Mr. Boulton removed from the counting- 
house everjthing but 150 guineas and some silver ingots, which he 
marked to furnish evidence against the prisoners ; and la}- in wait to 
take them, when they should have accomplished their purpose. On the 
23d of December, about one o'clock in tlie morning, the prisoners came, 
and Phillips opened the door into the front yard, through which they 
went along the front of the building, and round into another yard 
behind it, called the middle yard, and from thence they and Phillips 
went through a door which was left open, up a staircase in the centre 
building leading to the counting-house and rooms where the plated busi- 
ness was carried on ; this door the prisoners bolted, and then broke open 

1 See State v. Anoue, 2 N. & McC. 27; Alexander v. State, 12 Tex. 541. —Ed. 



SECT. II.] EGGINGTON'S CASE. 185 

the couuting-house which was locked, and the desks, which were also 
locked ; and took from thence the ingots of silver and guineas. They 
then went to the story above into a room, where the plated business 
was carried on, and broke the door open and took from thence a quan- 
tity of silver, and returned downstairs ; when one of them unbolted 
the door at the bottom of the stairs which had been bolted on their 
going in, and went into the middle yard ; where all (except one who 
escaped) were taken by the persons placed to watch them. OiL-this- 
rjiii r tw n pnint ri Tr rr r^ Made for t l'fi- prinnnr.m . V^'wn t ., ihnt nft_ felony wa s 
proved, as the w hole vya.a flnnp y jth the knowledge and assent of Mr. 
B oulton, and that the acts, of Philli p° ™o'-o hjf ?,"''° Secondly, that if ^ 
the facts proved amounted to a felony, it was but a simple larceny, as 
the building broke into was not the dwelling-house of any of the per- 
sons whose house it was charged to be ; and that there was no break- 
ing, the door being left open. After conviction, the case was argued 
before all the judges in the Exchequer Chamber ; and, for the reasons | 
before stated, all the judges agreed that the prisoners were not guilty 
of the burglarj'.^ 

^ ]^ ^it i h '•ggpP'^t tr» tVin Iniinpny th p jpajn^Mfy fVinnnrht. thcrC WaS nO 

assent in Bonltnn ; that his object being to detect tue prisoners, ne 
only gave them a greater facility to commit the larcenj' than they other- 
wise might have had ; and tliat this could no more be considered as an 
assent, than if a man, knowing of the intent of thieves to break into 
his house, were not to secure it with the usual number of bolts. That 
there was no distinguishing between the degrees of facility a thief might 
have given to him. ThaJLJl_cflul4-T3iiiy~be<.£onsidered as an apggjient 

- assen t. That Boultoifnever meant that the prisoneTS tihuuldTaEe away 
his property. And the circumstance of the design originating with the 
prisoners, and Boulton's taking no step to facilitate or induce the offence 
until after it had been thought of and resolved on by them, formed with 
some of the judges a very considerable ingredient in the case ; and dif- 
fered it much from what it might have been if Boulton had employed 
his servant to suggest it originally to the prisoners. Lawkence, J., 
doubted whether it could be said to be done invito domino, where the 
owner had directed his servant to carry on the business, to open 
the door, and meant that the prisoners should be encouraged by the 
presence of that servant ; and that by his assistance they should take 
the goods, so as to make a complete felon}* ; though he did not mean 
that thej' should carry them away. Finally, the prisoners were recom- 
mended to mercy on condition of being transported for seven years, 
the punishment they would have been liable to for the larceny. The 
decision in the above case is consonant to the rule laid down in the 
civil law under similar circumstances." 

1 See State c. Hayes, lO.'J Mo. 76, 16 S. W. 514; State v. Douglass, 44 Kan. 618. — Ed. 

2 Vide Just. Iiisf. lil> i. tit. 1, s. 8. 



186 TOPOLEWSKI V, HTATB, [C!IIAP. m. 



TOPOLEWSKI V. STATE. 
Supreme Court op Wisconsin. 1906. 

[Reported 109 N. W. 1037.] 

The accused was charged with having stolen three barrels of meat, 
the property of the Plankinton Packing Company, of the value of 
$55.20, and was found guilty. 

The evidence was to tliis effect : The Plankinton Packing Company 
suspected the accused of having by criminal means possessed himself 
of some of its property, and of having a purpose to make further efforts 
to that end. A short time before the 14th day of October, 1905, one 
Mat Dolan, who was indebted to the accused in the sum of upwards of 
$100, was discharged from the company's employ. Shortly theretofore 
the accused pressed Dolan for payment of the aforesaid indebtedness, 
and tlie latter being unable to respond, the former conceived the idea 
of solving the difficulty by obtaining some of the company's meat pro- 
ducts through Dolan's aid and b}^ criminal means, Dolan to participate 
in the benefits of the transaction by having the value of the property 
credited upon his indebtedness. A plan was accordingly laid by the 
two to that end, which Dolan disclosed to the company. Such plan 
was abandoned. Thereafter various methods were discussed of carrj-- 
ing out the idea of the accused, Dolan participating with the knowledge 
and sanction of the company. Finalh' a meeting was arranged between 
Dolan and the accused to consider the subject, the packing company 
requesting the former to bring it about, and with knowledge of Dolan 
causing one of its employes to be in hiding where he could overhear 
whatever might be said, the arrangement being made on the part of the 
company by Mr. Layer, the person in charge of its wholesale depart- 
ment. At such interview the accused proposed that Dolan should pro- 
cure some packages of the company's meat to be placed on their loading 
platform, as was customary in delivering meat to customers, and that 
he should drive to such platform, ostensibly as a customer, and remove 
such packages. Dolan agreed to the proposition, and it was decided 
that the same should be consummated early the next morning, all of 
which was reported to Mr. Layer. He thereupon caused four barrels 
of meat to be packed and put in the accustomed condition for delivery 
to customers, and placed on the platform in readiness for the accused 
to take them. He set a watch over the property, and notified the per- 
son in charge of the platform, who was ignorant of the reason for so 
placing the barrels, upon his inquiring what they were placed there for, 
to let them go ; that they were for a man who would call for them. 
About the time appointed for the accused to appear, he drove to the 
platform and commenced putting the barrels in his wagon. The plat- 
form boss supposing, as the fact was, that the accused was the man 



SECT. II.J TOPOLEWSKI V. STATE. 187 

Mr. Layer said was to come for the property, assumed the attitude of 
consenting to the taking. He did not actually help load the barrels on 
to the wagon, but he was by, consented by his manner, and when the 
accused was ready to go, helped him arrange his wagon, and inquired 
what was to be done with the fourth barrel. The accused replied that 
he wanted it marked and sent up to him with a bill. He told the plat- 
form boss that he ordered the stuff the night before through Dolan. 
He took full possession of the three barrels of. meat with intent to 
deprive the owner permanently thereof, and without compensating it 
therefor, wholly in ignorance, however, of the fact that Dolan had 
acted in the matter on behalf of such owner, and that it had knowinglj' 
aided in carrying out the plan for obtaining the meat. 

Marshall, J.^ . . . It was frankly conceded on the oral argument by 
the learned attorney general that if the plaintiff in error committed the 
orime of larceny, Dolan, the decoy of the packing company, was a 
guilty participant in the matter, unless the element of guilt on his part 
was absent, because, while in the transaction he acted ostensibly as an 
accomplice of the accused, his acts were in fact those of the packing 
company. So in the circumstances characterizing the taking of the 
barrels of meat from the loading platform the case comes down to this: 
If a person procures another to arrange with a third person for the lat- 
ter to consummate, as he supposes, larceny of the goods of such person 
and such third person in the course of negotiations so sanctioned by 
such person suggests the plan to be followed, which is agi'eed upon 
between the two, each to be an actor in the matter, and subsequently 
that is sanctioned secretly bj' such person, the purpose on the part of 
the latter being to entrap and bring to justice one thought to -be dis' 
posed to commit the offence of larceny, and such person carries out a 
part of such plan necessary to its consummation assigned to such other 
in the agreement aforesaid, such third person not knowing that such 
person is advised of the impending offence, and at the finality causeii 
one of its employes to, tacitly at least, consent to the taking of thu 
goods, not knowing of the real nature of the transaction, is such thirol 
person guilty of the crime of larceny, or does the conduct of such' per 
son take from the transaction the element of trespass or nonconsent 
essential to such crime? 

It will be noted that the plan for depriving the packing company ol 
its property originated with the accused, but that it was wholly im- 
practicable of accomplishment without the property being placed on the 
loading platform, and the accused not being interfered with when he 
attempted to take it. When Dolan agreed to procure such placing the 
packing company in legal effect agreed thereto. Dolan did not ex- 
pressly consent, nor did the agreement he had with the packing com- 
pany authorize him to do so, to the misappropriation of the property. 
Did the agreement in legal effect, with the accused to place the prop- 

^ Tart of the opinion is omitted. — Ed. 



188 TOPOLEWSKI V. STATE. [CHAP. III. 

erty of the packing compan}- on the loading platform, where it could bo 
appropriated by the accused, if he was so disposed and was not inter- 
fared with in so doing, though his movements in that regard were 
known to the packing company, and his taking of the property, his 
efforts to that end being facilitated as suggested, constitute consent to 
such appropriation? 

The case is very near the border line, if not across it, between con- 
sent and nonconsent to the taking of the property. Reg. v. Lawrence, 
4 Cox C. C. 438, it was held that if the property was delivered by a 
servant to the defendant by the master's direction the offence cannot 
be larceny, regardless of the purpose of the defendant. In this case 
the property was not only placed on the loading platform, as was usual 
in delivering such goods to customers, with knowledge that the -accused 
would soon arrive, having a formed design to take it^but the packing 
company's employe in charge of the platform, Ernst Klotz, was in- 
structed that the property was placed there for a man who would call 
for it. Klotz, from such statement, had every reason to infer, when the 
accused arrived and claimed the right to take the property, that he was 
the one referred to, and that it was proper to make deliver3' to him, 
and he acted accordingl}-. While he did not physically place the prop- 
erty, or assist in doing so, in the wagon, his standing by, witnessing 
such placing by the accused, and then assisting him in arranging the 
wagon, as the evidence shows he did, and taking the order, in the usual 
way, from tlig accused as to the disposition of the fourth barrel, and 
his conduct in respect thereto, amounted practically to a deliver}- of the 
three barrels to the accused. 

In Eex V. Egginton, 2 P. & P. 508, we have a very instructive case 
on the subject under discussion here. A servant informed his mastel 
that he had been solicited to aid in robbing the latter's house. By the 
master's direction the servant opened the house, gave the would-be 
thieves access thereto, and took them to the place where the intended 
subject of the larceny had been laid in order that they might take it. 
All this was done with a view to the apprehension of the guilty parties 
after the accomplishment of their purpose.- The servant, bj' direction 
of the master, not only gave access to the house, but afforded the 
would-be thieves every facility for taking the property, and yet the 
court held that the crime of larceny was complete, because there was 
no direction to the servant to deliver the property to the intruders or 
consent to their taking it. They were left free to commit the larceny, 
as they had purposed doing, and the way was made easy for them to 
do so, but they were neither induced to commit the crime, nor was any 
act essential to the offence done by any one but themselves. 

In harmony with the case last discussed in Williams v. State of 
Georgia, 55 Ga. 391, cited by counsel for the plaintiff in error, it was 
held that the owner of property may make everything ready and easy 
for a larceny thereof by one purposing to steal the same, and then 



bECT. Il.J TOPOLEWSKI V. STATE. 189 

remain passive, allowing the would-be criminal to perpetrate the offence 
of larcenj- as to every essential part of such offence, witiiout. sacrificing 
the element of trespass or nonconsent ; but if one ostensiblj' acting as 
an accomplice, but reallj' for the owner of the property, for the pur- 
pose of entrapping the would-be criminal, does acts amounting to the 
constituents of the crime of larcenj*, although the accused concurred in 
and supposed he prompted the act, he is not guilty of larceny. The 
circumstances of that case were these : The would-be criminal when he 
took the property supposed he was committing the offence of larceny, 
and that his associate was criminally participating therein ; but because, 
as a fact, such person was acting by direction of the owner, and actually 
placed the property in the hands of the taker, the element of nonconsent 
essential to larceny did not characterize the transaction. A distinction 
was drawn between one person inducing another to commit the crime 
of lareenj' of the former's goods, or such person aiding in the commis- 
sion of the offence, so far as the mental attitude of such other is con- 
cerned, bj' doing some act essential to such an offence, and merely 
setting a trap to catch a would-be criminal by affording him the freest 
opportunity to commit the offence. The latter does not sacrifice the 
element of nonconsent. State v. Jansen, 22 Kan. 498 ; Varner v. State 
of Georgia, 72 Ga. 745 ; State v. Duncan, 8 Rob. (La.) 562 ; Reg. v. 
Williams, 1 Car. & K. 195 ; Rex v. Egginton, 2 B. & P. 508. . 

In the case before us, the owner of the property, through its agent, 
Dolan, did not suggest the plan for committing the offence of larceny, 
which was finally adopted, but the evidence shows conclusivelj' that, 
by the consent or direction of the packing company, through words or 
otherwise, he suggested the commission of such an offence, and invited 
from the accused plans to that end. The fair construction of the evi- 
dence is that in the finality the plan was a joint creation of the two, 
and that it required each to be an active participant in its consumma- 
tion. It seems that there is good reason for holding that the situation 
in thatrespect falls within the condemnatory language in the opinion of 
the court in Love v. People, 160 111. 501, 43 N. E. 710, 32 L. R. A. 
139, cited to our attention by counsel for the plaintiff in error. That 
will be apparent from the closing words of the opinion, which are as 
follows : 

" A contemplated crime may never be developed into a consummated 
act. To stimulate unlawful intentions for the purpose and with the 
motive of bringing them to maturity, so the consequent crime maj- be 
punished, is a dangerous practice. It is safer law and sounder morals 
to hold, where one arranges to have a crime committed against his 
property' or himself, and knows that an attempt is to be made to en- 
courage others to commit the act by one acting in concert with such 
owner, that no crime is thus committed. The owner and liis agent may 
wait passively for the would-be criminal to perpetrate the offence, and 
each and every part of it, for himself, but they must not aid, encourage, 
or solicit him that thej' may seek to punish." 



190 TOPOLEWSKI V. STATE. [CHAP. III.. 

We cannot well escape the conclusion that this case falls under the- 
condemnation of the rule that where the owner of property b}- himself 
or his agent, actually or constructively, aids in the commission of the 
offence, as intended by the wrongdoer, by performing or rendering 
unnecessary some act in the transaction essential to the offence, the 
would-be criminal is not guilty of all the elements of the offence. Here 
Mr. Layer, acting for the owner- of the property, packed or superin- 
tended the packing of the four barrels of meat, as suggested by the 
owner's agent in -the matter, Dolan, and caused the same to be placed 
on the platform, knowing that the accused would soon arrive to take 
them, under an arrangement between him and its agent, and directed 
its platform boss, when he inquired as to the purpose of so placing the 
barrels, " Let them go ; they are for some man, and he will call for 
them." He, from the standpoint of such employe, directed the latter 
to deliver the barrels to the man when he called, the same in all re- 
Bpects as was done in Williams v. State, supra. He substantially made 
iBuch deliver^', by treating the accused when he arrived upon the scene 
as having a right to take the property. In that the design to trap a 
criminal went a little too far, at least, in that it included the doing of 
an act, in effect preventing the taking of the property from being char- 
acterized by any element of trespass. 

The. logical basis for the doctrine above discussed is that there can 
be no larceny without a trespass. So if one procures his property ta 
be taken by another intending to commit larceny, or delivers his prop- 
ert3' to such other, the latter purposing to commit such crime, the 
element of trespass is wanting, and the crime not fully consummated, 
however plain may be the guilty purpose of the one possessing himself 
of such property. That does not militate against a person's being free 
to set a trap to catch one whom he suspects of an intention to commit 
the crime of larceny, but the setting of such trap must not go further 
than to afford the would-be thief the amplest opportunity to carry out 
his purpose, formed without such inducement on the part of the owner 
of the property, as to put him in the position of having consented to 
the taking. If I induce one to come and take my property, and then 
place it before him to be taken, and he takes it with criminal intent, or 
if knowing that one intends to take my property, I deliver it to him, 
and he takes it with such intent, the essential element of trespass in. 
volving nonconsent requisite to a completed offence of larcenj' does not 
characterize tht transaction, regardless of the fact that the moral turpi- 
tude involved is no less than it would be if such essential were present. 
Some writers in treating this subject give so much attention to con- 
demning the deception practiced to facilitate and encourage the com- 
mission of a crime bj- one supposed to have such a purpose in vicw^ 
that the condemnation is liable to be viewed as if the deception were 
suflScient to excuse the would-be criminal, or to preclude his being 
prosecuted ; that there is a question of good morals involved as to both 



SECT. II.] TOPOLEWSKI V. STATE. 191 

parties to the transaction, and tliat the wrongful participation of the 
owner of the property renders him and the public incapable of being 
heard to charge the person he has entrapped with the offence of larceny. 
That is wrong. It is the removal from the completed transaction, wliich 
from the mental attitude of the would-be criminal may have all the in- 
gredients of larcenj', from the standpoint of the owner of the property 
of the element of trespass or nonconsent. When such element does 
not characterize a transaction involving the full offence of larceny, so 
far as concerns the mental purpose of such would-be criminal is con- 
cerned, is often not free from difficulty, and courts of review should 
incline quite strongly to support the decision of the trial judge in re- 
spect to the matter, and not disturb it except in a clear case. It seems 
that there is such a case before us. 

If the accused had merely disclosed to Dolan, his ostensible accom- 
plice, a purpose to improve the opportunity when one should present 
itself to steal barrels of meat from the packing company's loading plat- 
form, and that had been communicated by Dolan to the company, and 
it had then merely furnished the accused the opportunity he was look- 
ing for to carry out such purpose, and he had improved it, the situation 
would be quite different. The mere fact that the plan for obtaining 
the property was that of the accused, under the circumstances of this 
case, is not controlling. Dolan, as an emissary of the packing company, 
as we have seen, was sent to the accused to arrange, if the latter were 
so disposed, some sort of a plan for taking some of the company's prop- 
erty with the intention of stealing it. Though the accused proposed the 
plan, Dolan agreed to it, which involved a promise to assist in carrying" 
it out, ostensibly as an accomplice, but actually as an instrument of the 
packing company. That came very near, if it did not involve, solicita- 
tion by the company, in a secret way, for the accused to take its prop- 
erty as proposed. With the other element added of placing such 
propert3' on the loading platform for the accused to take pursuant to 
the agreement, with directions, in effect, to the person in charge of- the 
platform, to let the accused take it when he came for that purpose, we 
are unable to see any element of trespass in the taking which followed. 
The packing company went very significantly further than the owner 
of the property did in Eex v. Egginton, supra, which is regarded as 
quite an extreme case. It solicited the opportunity to be an ostensible 
accomplice in committing the offence of larceny instead of being solic- 
ited in that regard, and the property was in practical effect delivered 
to the would-be thief instead of its being merely placed where he could 
readily trespass upon the rights of the packing company by taking it. 
When one keeps in mind the plain distinction between merely furnisii- 
ing opportunity for the execution of a formed design to commit larceny 
and negotiations for the purpose of developing a scheme to commit the 
offence, regardless of who finally proposes the plan jointlj' adopted, and 
not facilitating the execution of the plan by placing the property pur- 



192 EEGINA V. CASE. [CHAP. IIL 

suant to the arrangement where it can readily be taken, but in practical 
effect, at least, delivering the same into the possession of the would-be 
thief, one can readily see that the element of trespass, involving consent, 
is present in the first situation mentioned, and not in the last, and that 
the latter pretty clearly fits the circumstances of this case. 

The judgment is reversed, and the cause remanded for a new trial. 



SECTION III. 

Consent of the Injured Party. 

EEGINA V. CASE. 
Crown Case Reserved. 1850. 

[RepoHed i Cox C. C. 220.] 

The following case was reserved by the Eecorder of Dover : 
William Case was tried before me at the last April Quarter Sessions 
for the borough of Dover, for an assault upon Mary Impitt. 

The defendant was a medical practitioner. Marj' Impitt, who was 
fourteen years old, was placed under his professional care by her 
parents, in consequence of illness, arising from suppressed menstrua- 
tion ; and on the occasion of her going to his house, and informing him 
she was no better, he observed, " Then I must try further means with 
you." He then took hold of her, and laid her down in his surgery, 
lifted up her clothes, and had carnal connection with her, she making 
no resistance, believing (as she stated) that she was submitting to 
medical treatment for the ailment under which she labored. The de- 
fendant's counsel, in his address to the jurj', contended that the girl 
was a consenting party ; therefore, that the charge of assault could not 
be sustained. 

I told the jury that the girl was of an age to consent to a man having 
carnal connection with her, and that if they thought she consented to 
such connection with the defendant he ought to be acquitted ; but that 
if they were satisfied she was ignorant of the nature of the defendant's 
act, and made no resistance, solely from a bond fide belief that the 
defendant was (as he represented) treating her medically, with a view 
to her cure, his conduct, in point of law, amounted to an assault. 

The jury found the defendant guilty, and he was sentenced to be 
imprisoned for eighteen calendar months in the borough gaol, where he 
now remains. I have to pray the judgment of my lords, justices, and 



SECT. HI.] EEGINA V. CASE. 193 

othcis, sitting in a court of appeal, whether my direction to the jury 
was correct in point of law. 

Horn, for the prisoner. The consent of the girl is found ; for con- 
senting and not resisting are synonymous. [Coleridge, J. — They are 
clearly used in a different sense here. Wilde, C. J. — I£ ^a medical 
mnn ngfia yniinjni-innq rii'nfr nent the pat jcnt do gg^ot re^jiit jts applJ-Ba- 
tion : but it cannot h e said that be consentsT Alderson, B. — How 
does this differ fiom the easy of tl man pretending to be the husband of 
the woman ?] Fraud is not expressly found in this case. It ought to 
have been left to the jury expressly to say whether the act done was 
necessary or proper. It is consistent with the verdict that he may have 
treated her medically. [Alderson, B. — He pretended that that was 
medicine which was not ; hereby that is fraud.] In the notes to E. 
V. Bead (1 Den. C. C. 379), it' is said, "It seems from R. v. Martin 
(2 Moo. C. C. 123 ; 9 Car. & P. 213) ; R. v. Banks (8 Car. & P. 674) ; 
R. V. Meredith (8 Car. & P. 589), first, that the stat. 9 Geo. 4, c. 31, 
s. 17, does not deprive a girl under ten years of age of the power to 
consent which she had at common law ; secondlj', that consequently if 
she consents to the mere incomplete attempt, such an attempt is not 
punishable as an assault ; thirdlj', that it is punishable as an attempt 
to commit a felony, viz., .as a misdemeanor ; " and further, " an assault 
seems to be an}"- sort of personal ill-usage, short of a batterj^ done to 
another against his consent. Therefore, such act, done with consent, 
is no breach of the peace or crime." Children of tender age are, there- 
fore, capable of consenting; so is an idiot (R. v. Ryan, 2 Cox C. C. 
115). [Patteson, J. — What do you say the jury found?] It is con- 
sistent with the verdict that he may have treated her medically. 
[Coleridge, J. — Suppose even that he did the act bond fide for the 
purpose which he pretended, would that justify him? Had he a right 
to pollute the child's body ?] Certainly not, morally ; but the question 
is, was it an assault in the eye of the law, there being consent in fact. 
[Platt, B. — The girl did not consent to that which was done. She 
did not know the nature of the act.] In Read's case (1 Den.' C. C. 377), 
the jury found that, from her tender years, the child did not know 
what she was about. Yet, as they found that she assented, the prison- 
ers were held entitled to an acquittal upon the indictment, which 
charged them with an assault. [Alderson, B. — It must be taken that 
there was actual consent in that case.] Even if fraud was established, 
still there was no assault. The doctrine of rape per fraudem stands 
Upon the decision of two judges, Alderson, B. and Gurney, B., in R. w. 
Williams (8 Car. & P. 286), and R. v. Saunders (ih. 265). In those cases 
the defendants were indicted for rape, and it appearing that the con- 
sent of the woman in each case had been obtained under the belief that 
the man was her husband, the learned judges directed that the prison- 
ers should be acquitted of the charge of rape, but convicted of an 
assault. [Alderson, B. — In the case before me I followed several 
previous decisions, although I doubted them.] If they were guilty of 



194 REGINA V. CASE. ' [CHAP. Ill, 

an assault, and penetration was proved, why were they not guiltj' of 
rape ? [Alderson, B. — Suppose a woman is ravished whilst under the 
influence of laudanum. I recollect a case before me on the Home Cir- 
cuit, where, at the time when the offence was committed, the woman 
was completely insensible from drunkenness. I doubted whether the 
prisoner ought to be convicted of rape ; but upon consultation with Lord 
Denman I held that he might.] E. v. Camplin (1 Den. C. C. 89 ; 1 
Cox C. C. 220), was a somewhat similar case, but diflferent in this, — 
that the prisoner gave the woman the liquor which made her drunk. 
He therefore contributed to the production of the state of insensibility 
during which the offence was committed ; and if the woman does not 
consent as long as she has the power of consenting or resisting, a 
reasonable inference that she did not consent may be drawn from her 
previous conduct ; the act would be done against " her permanent will," 
as Lord Denman expressed it in R. v, Camplin ; but if fraud dispenses 
with the necessitj' of resistance, any deceit will have that effect ; and it 
would be an assault if the woman consented, upon a false representa- 
tion that the man would marry her, or that medicallj' it would be bene- 
ficial to her. If a surgeon cuts off a leg or draws a tooth, and the 
patient consents because he believes that he is being medicallj' treated, 
jould he afterwards indict him for an assault? Again, the charge of 
I'ape includes an assault ; and is there to be one kind of consent for an 
assault and another kind of consent to get rid of the charge of rape ? 
The cases, therefore, it is submitted, deserve to be reconsidered. 
[Wilde, C. J. — there are two cases which clearly show that this de- 
fendant was guilty of an assault, and you say that the court ought to 
have held him guiltj' of rape ; but it would not be less an assault if it 
should be held to be rape.] If upon an indictment for assault a rape is 
proved, the misdemeanor merges in the felony ; but it is held that if 
the connection takes place by consent obtained by fraud it is not rape. 
If not, neither is it an assault. 

Harrow, contra, was not called upon. 

Wilde, C. J. I have no doubt in. this ease-that the Hirpntinn of th e 
learned recorder- wag^ perfectly correct. The objection is to the latter 
■"part of "the charge ; for he first of all tells the jurj"^ that the girl was of 
an age to consent, and that, if she consented, the prisoner must be 
acquitted. Therefore, he treats her as competent to consent, and her 
consent as a ground of acquittal ; but then, that direction is qualified 
by what he adds afterwards, — that if they were satisfied that she was 
ignorant of the nature of the act, and made no resistance solely from a 
bona fide belief that the defendant was, as he represented, treating her 
medically with a view to her cure, his conduct amounted to an assault. 
That is the part which is objected to. The jury found the prisoner 
guiltj'. The gi rl w as of an a ge at_which she might be totally ignorant 
of the naturejiLthe act, morally or religiously, and o f the e^ct \yh ich 
it might have upon her character and statiort in- li fe ; an eUahe was sent 
by her parents to thedefendant in be medically treated by him . Jt is 



SECT. III.] EEGINA V. CASE. 195 

said that he may have treated her medically ; if so, can it be said that 
he did not commit both a legal and ecclesiastical offence ? But, the jury 
must, I think, be taken to have found that it was not medical treatment. 
I admit that the question was not put to them ; nor was it necessaiy, 
because, whether the defendant thought it would be beneficial or not, 
his act was altogether improper and unjustifiable. He was guilty of a 
great offence. He in truth disarms the girl ; and she submits under 
a misrepresentation that it was some act necessary and proper for her 
cure ; - she made no resistance to an act which she supposed to be quite 
different from what it was ; wl ja.t she r^onspnted to was snmp.thin (af \ 

wholly di fferent from that whi rh unit dnnoy nrL Ji therefore, that which 
;y2°_;i^n " i Tvtvi dnnr urithn u t her corisen t. I am not prepared" to say 
that the two cases referred to might nar*t)e cases of rape ; for every 
rape includes an assault ; but it is not necessary to decide that ques- 
tion now. 

Aldekson, B. This is quite undistinguishable from the two cases 
decided by myself and my brother Gurnej', which were only the sequel 
of many others previously decided. When a man obtains possession of 
the person of a woman by fraud, it is against her will ; and if the 
question were res nova, I should be disposed to say that this was a 
rape, but that is not necessary in this case. This is an indictment for 
an assault, and the prisoner obtains the consent of the child by 
representing the act as something different from what it was. 

Patteson, J. Mr. Horn confounds active consent and passive non- 
resistance, which, I think, the learned recorder has very accurately 
distinguished. Here the girl did not resist ; but^gtill there wa^ no 
consent. ' 

tJftEERiDGE, J. The girl was under medical treatment, and she 
makes no resistance only in consequence of the confidence which she 
reposed in the defendant as her medical adviser. If there had been no 
consent the defendant's act would have been indisputably an assault ; 
and under the circumstance, therefore, his conduct amounted to an 
assault according to cases which I should be sorrj' to see infringed. ' 

Platt, B. I think my brother Patteson has pointed out the fallacy 
of Mr. Horn's argument as to consent. The girl consents to one thing, 
and the defendant does another ; that other involving an assault.^ 

Conviction affirmed. 

1 Ace. Eex v. Nichols, lluss. & Ry. 130; Rex v. Rosinski, 1 Moody, 19; Beg. d. 
Woodhurst, 12 Cox C. C. 443 ; Reg. ■;. Lock, L. R. 2 C. C. R. 10. — Ed. 



196 EEGINA V. CLAKENCE. [CHAP. III. 



EEGINA V. CLARENCE. 

Cbown Case Eeseeved. 1888. 

[Reported 16 Cox C. C. 511, 22 Q. B. D. 23.] 

Wills, J.,^ read the following judgment: The prisoner in this 
case has been convicted (1) of " an assault" upon his wife, "occasion- 
ing actual bodily harm," under sect. 24 & 25 Vict. c. 100, s. 47 ; and 
(2) of "unlawfully and maliciously inflicting" upon her "grievous 
bodily harm " under sect. 20 of the same statute. The facts are that 
he was, to his knowledge, suffering from gonorrhoea ; that he had 
marital intercourse with his wife without informing her of the fact ; 
that he infected her, and that from such infection she suffered grievous 
bodily harm. The question is, whether he was rightly convicted upon 
either count. First, was he guilty of an assault? In support of a 
conviction it is urged that even a married woman is under no obliga- 
tion to consent to intercourse with a diseased husband ; that had the 
wife known that her husband was diseased she would not have con- 
sented ; that the husband vf&s guilty of a fraud in concealing the fact 
of his illness ; that her consent was therefore obtained hy fraud, and 
was therefore no consent at all, and, as the act of coition would implj' 
an assault if done without consent, he can be convicted. This reason- 
ing seems to me eminently unsatisfactory. That consent obtained by 
fraud is no consent at all is not true as a general proposition either in 
fact or in law. If a man meets a woman in the street and knowingly 
gives her bad money in order to procure her consent to intercourse 
with him, he obtains her consent by fraud, but it would be childish to 
say that she did not consent. In respect of a contract, fraud does not 
destroy the consent ; it onl^' makes it revocable. Money or goods 
obtained by false pretences still become the property of the fraudulent 
obtainer unless and until the contract is revoked by the person de- 
frauded, and it has never been held that, as far as regards the applica- 
tion of the criminal law, the repudiation of the contract had a 
retrospective effect, or there would have been no distinction between 
obtaining money under false pretences and theft. A second and far 
more effective way of stating the argument, however, is that connection 
with a diseased man and connection with a sound man are things so 
essentially different that the wife's submission without knowledge of 
the facts is no consent at all. It is said that such a case rests upon 
the same footing with the consent to a supposed surgical operation or 
to connection with a man erroneousl}' supposed to be the woman's 
husband. In the latter case there has been great difference of judicial 
1 Part of each opinion, not involving the question of assault, is omitted. 



SECT. III.] EEGINA. V. CLAEENCE. 197 

opinion as to whether it did or did not amount to the crime of rape ; 
but as it certainly would now be rape by virtue of the Criminal Law 
Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 4, I treat it as so set- 
tled. A third way of putting the case is, that inasmuch as the act 
done amounts to legal cruelty according to the doctrines formerly of 
the Ecclesiastical Courts, and now of the Divorce Court, it cannot be 
said to be within the consent implied by the marital relation. These 
different ways of putting the argument in favor of a conviction have 
some important differences. According to each the consent of the 
marital relation does not apply to the thing done, — a fact as to which 
there does not seem to be room for doubt, and according to each the 
want of it makes the transaction an assault. According to the first, it 
is the fraudulent suppression of the truth which destroys the consent 
de facto given, a proposition involving as a necessary element in the 
offence the knowledge of his condition on the part of the offender. 
According to the second, it is the difference between the thing sup- 
posed to be done and the thing actually done that negatives the idea 
of consent at all, and in that view it must be immaterial whether the 
offender knew that he was ill or not. Accovdiiig to the third, his 
knowledge is material, not on the ground of fraudulent misrepresenta- 
tion, but because it is an element in legal cruelty as that term is under- 
stood in the Divorce Court. It makes a great difference upon which 
of these grounds a conviction is supported. Each of them covers an j 
area vastlj- greater than the ground occupied by the circumstances of 
the present case. If the first view be correct, every man, as has been 
jiointed out, who knowingly gives a piece of bad money to a prostitute 
to procure her consent to intercourse, or who seduces a woman by 
representing himself to be what he is not, is guiltj' of assault, and, as 
it seems to me, therefore, of rape. If the second view be correct, it 
applies in similar events just as much to unmarried as to married 
people, unless the circumstances should establish that the parties were 
content to take their chances as to their respective states of health ; 
and the allegation that a man had given an assurance to a prostitute 
before having intercourse with her that he was sound when he was not 
so in fact, might be a ground for putting him upon a trial for rape. If 
the third view be correct, it places the married man, in the eye of the 
criminal law, in a much worse position than the unmarried, and makes 
him guilty of an assault, and possibly of rape, when an unmarried man 
would not be liable to the same consequences. It may be said that, 
from the moral point of view, his case is the worse : but there are two 
sides to this as to most other questions. The man who goes out of his 
way to seek intercourse under such circumstances — and, be it remem- 
bered that the hypothesis I am now dealing with assumes knowledge of 
his condition on the part of the man — is without excuse. There may 
be many excuses for the married man suggested bj' the modes of life 
with which poverty and overcrowding have to do. We are thus intro- 
duced, as it seems to me, to a set of very subtle metaphysical qLuestions. 



198 EEGINA V. CLAEENCE. [CHAP. III. 

If we are invited to apply the analog}' of the cases in which a man lias 
procured intercourse by personating a husband, or by representing that 
he was performing a surgical operation, we have to ask ourselves 
whether the procurement of intercourse by suppressing the fact that 
the man is' diseased is more nearly allied to the procurement of inter- 
course bj' misrepresentation as to who the man is, or as to what is 
being done, or to misrepresentations of a thousand kinds in respect of 
which it has never yet occurred to any one to suggest that intercourse 
so procured was an assault or a rape. There are plenty of such in- 
stances in which the knowledge of the truth would have made the 
victim as ready to accept the embraces of a man stricken with small- 
pox or leprosy. Take, for example, the case of a man without a 
single good qualitj', a gaol-bird, heartless, mean, and cruel, without 
the smallest intention of doing anj-thing but possessing himself of the 
person of his victim, but successfully representing himself as a man ot 
good family and connections prevented by some temporary obstacle 
from contracting an immediate marriage, and with conscious hypocrisy 
acting the part of a devoted lover, and in this fashion, or perhaps under 
the guise of affected religious fervor, effecting the ruin of his victim. 
In all that induces consent there is not less difference between the man 
to whom the woman supposes she is yielding herself and the man bj' 
whom she is really betrayed, than there is between the man bodily 
[sound and the man afflicted with a contagious disease. Is there to be 
a distinction in this respect between an act of intercourse with a wife 
who on this special occasion would have had a right to refuse her con- 
sent, and certainlj- would have refused it had she known the truth, and 
the intercourse taking place under the general consent inferred from 
a bigamous marriage obtained bj' the false representation that the man 
was capable of contracting a legal marriage ? In such a case the man 
can give no title of wife to the woman whose person he obtains hy the 
false representation that he is unmarried, and \>y a ceremony which, 
under the circumstances, is absolutely void. Where is the difference 
between consent obtained by the suppression of the fact that the act of 
intercourse may produce a foul disease, and consent obtained by the 
suppression of the fact that it will certainly make the woman a concu- 
bine, and while destroj'ing her status as a virgin withhold from her the 
title and rights of a wife ? Where is the distinction between the mis- 
take of fact which induces the woman to consent to intercourse with a 
man supposed to be sound in body, but not really so, and the mistake 
of fact which induces her to consent to intercourse with a man whom 
she believes to be her lawful husband, but who is none ? Man}"^ women 
would think that, of two cruel wrongs, the bigamist had committed the 
worse. These are but specimens of the questions which must be faced 
before the circumstances of the present case can be pronounced to 
constitute an assault ; and such considerations lead one to pause on 



SECT. III.] EEGINA V. CLARENCE. 199 

the threshold and inquire whether the enactment under consideration 
could really have been intended to apply to circumstances so com- 
pletely removed from those which are usuallj' understood when an 
assault is spoken of, or to deal with matters of any kind involving the 
sexual relation or act. The description of the oflfence constituted by 
sect. 47 is as follows: "Whoever shall be convicted of an assault 
occasioning actual bodily harm." The section is the last of a group of 
twelve headed "Assaults." None of them except sect. 43 implies 
that any distinction between males and females is thought of, and that 
section points to nothing of a sexual character. It merel}' provides 
that in cases of assault upon males under fourteen and upon females 
generally, if the assault or battery is of such an aggravated character 
that it cannot in the opinion of the justices be sufficiently punished as a 
common assault or battery, it shall be lawful for them to inflict a heavier 
punishment. Indecent assaults, as such, upon females are dealt with 
by sect. 52, and upon males by sect. 62, and there is therefore no 
ground for supposing that anything specially between the sexes is 
pointed at either by this section, or by anj- of those in the group to 
which it belongs. The next group of eight sections (48-55) is headed 
"Rape, abduction, or defilement of women," and deals specialh- with 
sexual crimes. Surely this was the place in which to find an enact- 
ment dealing with the very peculiar circumstances now before us, and 
it cannot really have been intended that they should be embraced b^- a 
section whose terms are applicable to, and as it seems to me satisfied 
by, the class of cases which would naturall}- occur to one's mind, those 
of direct violence. The worst of the contagious diseases of this class 
has, I believe, been known in this country' for close upon four centuries. 
The circumstances which have happened in this case cannot have been 
of infrequent occurrence during that interval, and cannot have failed 
justly to give rise to the bitterest resentment. It seems to my mind a I 
.verj' cogent argument against the conviction that, if the view of the 
law upon which it is founded be correct, thousands of offending hus- 
bands, and as I, think also of offending wives, must liave rendered | 
themselves amenable to the criminal law ; and yet it was reserved for \ 
the year 1866, when Reg. v. Bennett (4 F. & F. 1105) was decided, to 
discover that such transgressors might have been indicted and crimi- I 
nally dealt with during all that long period. It is true that women take ' 
a different place in social position, and have by Act of Parliament 
many rights and bj' common usage much social liberty which no one 
would have claimed for them centuries ago. This fact, however, seems 
to me a strangely insufficient reason for a new reading of the criminal 
law fraught with consequences which no one can deny to be of a very 
serious and widespread character. The principle upon which a convic- 
tion in this case must be upheld will or will not apply to the intercourse 
of unmarried, as well as of married, men and women, according to the 
ground or grounds selected upon which to justify it. If it is based 



200 EEGINA V. CLARRNCE. [CHAI'. III. 

upon the notion of^^flixislty as understood in the Divorce Court, the 
case of the unmarried man and woman falls without its purview. If 
S^2jDrsssi«i-Q£_thetr^th be a material element in the inquiry, actual 
misrepresentation on the subject of health^ would put an unmarried 
man or woman in the same position as the married man or woman 
who conceals that fact against which the married state ought to be a 
sufHcient guarantee. I intentionally refer to women as well as men, 
for it is a great mistake to look at questions of this kind as if sexual 
faults and transgressions were all on the side of one sex. The unmar- 
ried woman who solicits and tempts a perhaps reluctant man to inter- 
course which he would avoid like death itself if he knew the truth as to 
her health, must surely, under some circumstances at least, come under 
the same criminal liability as the same man. If, again, the conviction 
be upheld on the ground of the diffrrnrrr h r t Trrr n thr t ihi ng_oenne sted~ 
to and the t,hin f> - d nne. the principle will extend to many, perhaps most, 
cases of seduction and to other forms of illicit intercourse, including at 
least theoretically the case of prostitution ; and if such difference be 
the true ground upon which to base a confirmation of the conviction, 
knowledge of his or her condition on the part of the person affected 
is immaterial. It is the knowledge or want of knowledge on the part 
of the person who suffers from contagion alone that is the material 
element. Surelv these considerations point to the conclusion that a 
wide door will be opened to inquiries not of a wholesome kind, in 
which the difficulties in the wa}' of arriving at truth are often enor- 
mous, and in which the danger of going wrong is as great as it is by 
people in general inadequately appreciated. A new field of extortion 
may be developed, and very possibl}' a fresh illustration afforded of 
the futilitj- of trying to teach morals b3- the application of the criminal 
law to cases occupying the doubtful ground between immorality and 
crime, and of the dangers which always beset such attempts. Of 
course, if by legislation such cases should be brought within the crim- 
inal law, all we shall have to do will be to face the difficulties and do 
our best to administer the law. T t seems f.n me^-hossLeverjthat such 
iriM^tiPn'=!i"n of t.he c riminal law to a vast class r>f p.asps wTtjT^hti^h it. 
Eas never 3et professed to deal is a matter for the L ep-islat.nvp gnH tho 
__Iiegi*i«*«;e3jOnTjr-~I- understand the process of expansion by which 
the doctrines of the common law are properly made by judicial con- 
struction to apply to altered modes of life and to new circumstances 
and results thus brought about which would have startled our ancestors 
could they have foreseen them. I do not understand such a process, 
and I do not think it legitimate, when every fact and every circum- 
stance which goes to constitute the alleged offence is identical with 
what it has been for many hundreds of years past. Whether further 
legislation in this direction is desirable is a question for legislators rather 
than lawyers, and the only remark that I desire to make upon this sub- 
ject is that, apart from cases of actual violence, and of children so 



SECT. III.] KEGINA V. CLAEENCE. 201 

young that the very fact of touching them in the way of sexual rela- 
tion may fairly be treated as a crime, the mysteries of sexual impulses 
and intercourse are well nigh insoluble, and the difficulty of arriving at 
the truth in the case of imputed misconduct enormous ; and I doubt 
whether they can be thoroughly appreciated without the experience 
gained by trying cases of intercourse with girls near the age of six- 
teen, and they certainly suggest the necessity of the utmost care in 
dealing by way of legislation with the subject under discussion. If 
intercourse under the circumstances now in question constitute an 
assault on the part of the man, it must constitute rape, unless, indeed, 
as between married persons rape is impossible, — a proposition to which 
I certainly am not prepared to assent, and for which there seems to me 
to be no sufficient authority. As between unmarried people this quali- 
fication will not appl}'. I cannot understand whj-, as a general rule, if 
Intercourse be an assault, it should not be a rape. To separate the 
act into two portions, as was suggested in one of the Irish cases, and 
to say that there was consent to so much of it as did not consist in the 
administration of an animal poison, seems to me a subtlety of an ex- 
treme kind. There is, under the circumstances, just as much and just 
as little consent to one part of the transaction as to the rest of it. No 
one can doubt that in this case, had the truth been known, there would 
have been no consent or even a distant approach to it. I greatly prefer 
the reasoning of those who say that, because the consent was not to 
the act done, the thing done is an assault. If an assault, a rape also, 
as it appears to me. I am well aware of the respect due to the opinion 
of the very learned judges from whom I differ ; but I cannot help say- 
ing that to me it seems a strange misapplication of language to call 
such a deed as that under consideration either a rape or an assault. In 
other words, it is, roughlj' speaking, where the woman does not intend^ 
that the sexual act shall be done upon her either at all, or, what is 
pretty much the same thing, by the particular individual doing it ; and 
an assault which includes penetration does not seem to me, under such 
circumstances, to be anything but rape. Of course, the thing done in 
the present case is wicked and cruel enough. No one wishes to say a 
word in palliation of it. But that seems to me to be no reason for 
describing it as something else than it is, in order to bring within the 
criminal law an act which, up to a very recent time, no one ever 
thought was within it. If coition, under the circumstances in question, 
be an assault, and if the reason whj- it is an assault depends in any 
degree upon the fact that consent would have been withheld if the 
truth had been known, it cannot the less be an assault because no mis- 
chief ensues to the woman, nor, indeed, where it is mereh^ uncertain 
whether the man be infected or not. For had he disclosed to the 
woman that there might be the peril in question, she would, in most 
cases other than that of mere prostitution, have refused her consent, 
and it is, I should hope, equally true that a married woman, no less 



202 EEGINA V. CLA.EENOE. [CHAP. III. 

than an unmarried woman, would be justified in such a refusal. In all 
such cases, therefore, apart from the suggested impossibility of rape 
upon a wife, rape must be committed, and a great many rapes must be 
constantly taking place without either of the parties having the least 
idea of the fact. The question raised is of very wide application. It 
does not end with the particular contagion under consideration, but 
embraces contagion communicated by persons having small-pox or 
scarlet fever, or other like diseases quite free from the sexual element, 
and whilst so afflicted coming into a personal contact with others which 
would certainly have been against the will of those touched had they 
known the truth. This species of assault, if assault it be, must have 
been of much longer standing than the four centuries I have alluded 
to, and it involves no considerations depending upon the social status 
of women, yet no one has ever been prosecuted for an assault so con- 
stituted. But upon this point I desire only to express my concurrence 
in the observations of my brother Stephen, which I have had the 
opportunity of reading. I wish to observe that, if an assault can be 
committed by coition to which consent has been procured by suppres- 
sion of the truth or misrepresentation as to the state of health of one 
of the parties, questions of the kind I have indicated will be triable, 
may be tried now at petty sessions. The observation is not, of course, 
conclusive ; but it is well to appreciate whither a conviction in the 
present ease must lead us, not only as regards the subject-matter of 
the criminal law, but as to the tribunals which will have to administer 
it "When the Act of 1861 (24 & 25 Vict. c. 100) was passed, it had 
never occurred to any human being, so far as our legal history affords 
any clue, that the circumstances now under consideration constituted 
an assault. The term is as old as any in our law, but it had never 
been so applied. The doctrine owes its origin to the remarks of 
Willes, J., at the Taunton Assizes, held in 1866, and reported in Reg. 
V. Bennett (4 F. & F. 1105). It was pointed out in the Irish case of 
Hegarty v. Shine (Ir. L. Rep. 2 C. L. 273 ; C. A. Ir. L. Rep. 4 C. L. 
288) that the conviction might be upheld, on the ground that the girl 
was, as she alleged, asleep when intercourse took place, and therefore 
gave no consent. In spite of all my respect for everything that fell 
from the lips of that ver^- great lawyer, I am compelled to think that 
it was a case in which he strained the law for the purpose of punishing 
a great wrong, and I confess myself unable to follow his view, that 
the thing done in that case might be an assault and yet not a rape. 
Were it, however, possible that the mere words of the section would 
applj' to the transaction in question, and that it were capable of being 
described as an assault, I am still of opinion that the context shows 
that sexual crimes were intended to be dealt with as a class by them- 
selves, the only rational way of legislating upon such a subject ; and if 
the letter of the section could be satisfied b}- the present circumstances, 
there never was a case to which the maxim Qui hceret in literd hceret 
in cortice more emphaticallj- applied. 



SECT. III.] KBGINA V. CLARENCE. 203 

Hawkins, J., read the following judgment : I am of opinion that 
the prisoner was rightly convicted upon both counts of the indictment. 
The first count was framed under sect. 20 of 24 & 25 Vict. c. 100, and 
charged the prisoner with " unlawfully and maliciously inflicting griev- 
ous bodily harm " upon Selina Clarence. The second count was framed 
under sect. 47 of the same Act, and charged him with an "assault" 
upon the said Selina Clarence, "occasioning" her "actual bodily 
harm." At the time of the committing of the offences charged Selina 
Clarence was and still is the wife of the prisoner. At that time the 
prisoner was suffering from gonorrhoea, as he knew, but his wife was 
ignorant of the fact. In this condition of things the prisoner had 
sexual intercourse with his wife, and in so doing communicated to her 
his disease, and thereby caused her grievous bodily harm. It must 
also be taken as a fact that, had the prisoner's wife known that he was 
so suffering she would have refused to submit to such intercourse. On 
the prisoner's behalf it was contended that the conviction was wrong 
upon several grounds : first, that the injury caused to the wife was the 
result of a lawful act, viz., the sexual communion of a husband with 
his wife ; secondly, that the charge in the first count involved, and that 
in the second count was based on, an assault, and that no assault 
could be committed by a husband in merelj' exercising his marital 
right upon the person of his wife ; and, thirdly, that the sections of the 
statute under which the indictment was framed had no application to 
such circumstances as those above mentioned. About the unlawfulness 
and malicioasness^ nf thn priinnni''" f nnr|iirt it irnmrrTil iiiii iliifin—ilTIr 
to raise a do ubt. It has long been established by authority that, if a 
husband knoWl'liglj- communicates to his wife a venereal disease, such 
misconduct amounts to legal cruelty, and is ground for judicial separa- 
tion ; and, in tlie absence of evidence to the contrary, it may be pre- 
-iimed that a man suffering under venereal disease knows it, and knows 
-il.'^o that, if he has communion with his wife, he will in all human 
probability communicate his malady to her (see Brown v. Brown, L. 
Kep. 1 P. & D. 46). It is equally clear that wilfully to do an unlawful 
act to the prejudice of another is to do it maliciously. We have, then, 
these elements established, grievous bodily harm unlawfully and 
maliciously caused. ... I proceed now to consider the question 
whether there was in fact an assault by the prisoner on his wife occa- 
sioning her either grievous or actual bodily harm. I answer this 
question also in the affirmative. By the marriage contract a wife no 
doubt confers upon her husband an irrevocable privilege to have sexual 
intercourse with her during such time as the ordinary relations created 
by such contract subsist between them. For this reason it is that a 
husband cannot be convicted of a rape committed by him upon the 
person of his wife. Rut this marital p riyjjpprp ilnim iiipI Jiflir) it lij^'i 
band in e ndangering his wife's health and causing her grievous bodily 
harul ]}]■ exercising his marital privilege when he is suffering from 
venereal disorder of such a character that the natural consequence of 



204 EEGINA V. CLAEENCE. [CHAP. III. 

such communion will be to communicate the disease to her. Lord 
Stowell, in Popkin v. Popkin, cited in Durant v. Durant (1 Hagg. Eccl. 
Rep. 767), said: " The Whajiirl has a. rioht t.n the^rnon nf hi sa wifn.- 
Cl)ut not if her health is e ndangered." So, to endanger her health, 
and cause her to sufferfi^omTtJatireoTrre-ffis'ease contracted through his 
own infidelity cannot, by the most liberal construction of his matri- 
monial privilege, be said to fall within it ; and, although I can cite no 
direct authority upon the subject, I cannot conceive it possible seri- 
ously to doubt that a wife would be justified in resisting by all means 
in her power — nay, even to the death, if necessary — the sexual em- 
braces of a husband suffering from such contagious disorder. In my 
judgment, wilfully to place his diseased person in contact with hers 
without her express consent amounts to an assault. It has been 
argued that, to hold this, would be to hold that a man who, suffering 
from gonorrhoea, has communion with his wife might be guilty of the 
crime of rape. I do not think this would be so. Eape consists in a 
man having sexual intercourse with a woman without her consent, and 
the marital privilege being equivalent to consent given once for all at 
the time of marriage, it follows that the mere act of sexual communion 
is lawful ; but there is a wide difference between a simple act of com- 
mi]pjf^n whinh i s lawful and an"aT' <»-a£^ '^fliB-mnninn (inmbinrir] gith Jrjfrr 
tjous con tag ion endangering; health and causing harm which is unlamuT; 
It may be said that, assuming a mun lu bu tJt5easecl, still, as"ise cannot 
have communion with his wife without contact, the communication of 
the disease is the result of a lawful act, and therefore cannot be crim- 
\ inal. My reply to this argument is that if a person, having a privilege 
jof which he ma^' avail himself or not at his will and pleasure, cannot 
/exercise it without at the same time doing something not included in 
/this privilege, and which is unlawful and dangerous to another, he 
I must either forego his privilege or take the consequences of his unlaw- 
/ ful conduct. I may further illustrate my view upon this part of the 
case by applying, bj' way of test, to an indictment for assault the old 
form of civil pleadings. Thus : Indictment for an assault ; plea of 
justification, that the alleged assault was the having sexual communion 
with the prosecutrix, she being the prisoner's wife ; new assignment, 
that the assault charged was not that charged in the plea, but the un- 
lawful and malicious contact of her person with dangerous and contagious 
disease. What possible justification could be pleaded or answer given 
to such new assignment? I ought perhaps to state that, even if to hold 
a husband liable for an assault under such circumstances would be to 
subject him also to a charge of rape, the opinion I have above expressed 
would not be changed. No jury would be found to convict a husband 
of rape on his wife except under very exceptional circumstances, any 
more than they would convict of larceny a servant who stealthily 
appropriated to her own use a pin from her mistress's pincushion. I 
can, however, readily imagine a state of circumstances under which a 
husband might deservedly be punished with the penalty attached to 



SECT. III.] EEGINA V. CLARENCE. 205 

rape, and a person committing a theft even of a pin to the penalty 
attached to larcenj'. The cases put of a person suffering from small- 
pox, diphtheria or any other infectious disorder, thoughtlessly giving a 
wife or child a mere affectionate kiss or shake of the hand from which 
serious consequences never contemplated ensued, seem to me cases in 
which it is impossible to suppose any criminal prosecution would be 
tolerated, or could, if tolerated, result in a conviction ; but I can 
picture to myself a state of things in which a kiss or shake of the 
hand given by a diseased person, maliciously with a view to communi- 
cate his disorder, might well form the subject of criminal proceedings. 
I will not, however, stop to discuss such imaginary cases further. The 
case of Reg. v. Bennett (4 F. & F. 1105), decided in 1866, is an 
authority directly in support of the view I have taken. The indictment 
was for an indecent assault on a girl who had consented to sleep with 
the prisoner, who had connection with her, and communicated to her a 
foul disease. Willes, J., before whom the case was tried, in summing- 
up, told the jury that, though it would have been impossible to have 
established rape, yet if the girl did not consent to the aggravated cir- 
cumstances — i. e., to connection with a diseased man — his act would 
be an assault. Willes, J., no doubt, according to the report, based his 
observations upon the tule that fraud vitiates consent ; but it is clear 
his mind was alive to the point I have been considering, viz., that, 
though there might be such consent to sexual intercourse as to make 
the connection no rape, nevertheless, the infectious contact might 
amount to an assault. See also Hegarty v. Shine, 14 Cox C. C. 124; 
s. c. C. A. ib. 145 ; and Reg. v. Sinclair, 13 Cox C. C. 28. In dealing 
with this case my judgment is not based upon the doctrine that fraud 
vitiates consent, because I do not think that doctrine applies in the 
case of sexual communion between husband and wife. The sexual 
communion between them is by virtue of the irrevocable privilege con- 
ferred once for all on the husband at the time of the marriage, and 
not at all by virtue of a consent given upon each act of communion, as 
is the case between unmarried persons. My j udgmen t is based on the 

fact that thft yrrtnorfnl aY^f, ohar^ ed against tX ]" pn'g"""'' '"''g "'•'<^ invrilyp^^ 
in or sp "'^ ti0"'''^ ^y ^IH P iarital privLk fce- . and mxf, di i h fdi - which n o 
rnnaent wt^p pvpt giyo" nt 0]^ For this reason it is unnecessary to 
discuss or express any opinion upon the various cases cited during the 
argument relating to connection obtained by fraud, and I accordingly 
abstain from doing so. Another argument used for the prisoner was 
that such cases as the present were not contemplated by the statute 
under which he was indicted, and it was also said that, if it had been 
intended that the communication of a venereal disease to a woman 
during an act of sexual intercourse, consented to by her, should be 
punishable as a crime, some special enactment to that effect would 
have been introduced into one or other of the Acts of Pailiament relat- 
ing to women and offences against them. This is an argument to 
which I attach no weight, assuming the facts bring the case within the 



206 EEGINA V. CLAEENCE. [CHAP. III. 

fair interpretation of the sections to wliicli I have referred. Moreover, 
I may point out that Reg. v. Bennett (4 F. & F. 1105), to which I 
have referred, was tried in the year 1866, and it is strange, if the 
law as there laid down was thought to be contrary to the law of 
the land or to the intention of the Legislature, that in no subse- 
quent legislation during the twenty-two years which have since elapsed 
has any enactment been introduced in which any expression is to 
be found indicative of a disapproval of that decision or that the 
intention of the statute was at variance with it. I think the Legisla- 
ture contemplated the punishment of all grievous bodily harm, however 
caused, if caused unlawfully and maliciously ; and I cannot bring my 
mind for an instant to believe that, even had the circumstances before 
us been present to the minds of the framers of the Act, thej' would 
have excluded from its operation an offence as cruel and as contrary to 
the obligation a man owes to his wife to protect her from harm as can 
well be conceived. It has been urged that the case of husband and 
wife does not diffet from that of unmarried persons, and that to affirm 
this conviction would tend to encourage undesirable prosecutions where 
disease has been communicated during illicit communion. I do not by 
any means assent to these propositions. I think the two cases are 
substantially different. The wife submits to her husband's embraces 
because at the time of marriage she gave him an irrevocable right to 
her person. The intercourse which takes place between husband arid 
wife after marriage is not by virtue of any special consent on her part, 
but in mere submission to an obligation imposed upon her by law. Con- 
sent is immaterial. In the case of unmarried persons, however, consent 
is necessary previous to ever}' act of communion, and if a common 
prostitute were to charge with a criminal offence a man who, in having 
had connection with her had infected her with disease, few juries would 
under ordinary circumstances hesitate to find that each party entered 
into the immoral communion tacitly consenting to take all risks. In 
the case of women other than prostitutes, the circumstances of each 
particular case would have to be considered, and the question how far 
fraud vitiates consent to such communion would also have to be dealt 
with. In such cases, too, shame would deter most decent women from 
appealing to the law ; and, if a man were the sufferer, seldom would he 
incur the ridicule and exposure which would be brought upon him. 
Considering how few prosecutions have been instituted for such causes 
since the decision in Reg. v. Bennett (4 F. & F. 1105), and enter- 
taining moreover, as I do, a doubt whether any person, man or 
woman, could, as against the public interests, consent to the inflic- 
tion of grievous bodily harm, so as to give a legal defence to a crim- 
inal prosecution, although such consent might afford a good defence 
to a civil action, I do not see any reason for such fears on the subject 
as have been entertained. Anyhow they cannot aflfect the law. Forti- 
fied in my opinion, as I believe myself to be, hy the plain words of the 
statute, and by the authority of Willes, J., one of the greatest and most 



SECT. III.] REGINA. V. BAllROW. 207 

accurate lawj-ers of modern times, 1 have arrived at the conclusion 
that this conviction is right and in accordance with the law, and I can- 
not therefore be a party to a judgment which in effect would proclaim 
to the world that by the law of England in this year 1888 a man may 
deliberately, knowingly, and maliciously perpetrate upon the body of 
his wife the abominable outrage charged against the prisoner, and yet 
not be punishable criminally for such atrocious barbarity. I maj' state 
that this judgment has been read by my brother Day, who requests me 
to say that he thoroughlj- concurs in it.'' 



REGINA V. BARROW. 

Crown Casb Reserved. 1868. 

[Reported L. R. \ Crown Cases Reserved, 156.] 

The following case was stated by Kelly, C. B. : — ■ 

This was an indictment for a rape. The question is whether the 
offence as proved amounted in point of law to a rape. This question 
depended entirely upon the evidence of the prosecutrix, Harriet Gel- 
dart, which was as follows : — 

' ' I and my husband lodge together at William Garner's. We sleep 
upstairs on the first floor, and were in bed together on the night 
of Saturday, the 21st of June. I went to bed about 12 o'clock, and 
about 2 o'clock on Sunday morning I was lying in bed, and my 
husband beside me. I had my baby in my arms, and was between 
waking and sleeping. I was completely awakened by a man having 
connection with me, and pushing the baby aside out of my arms. He ' 
was having connection with me at the moment when I completely 
awoke. I thought it was my husband, and it was while I could count 
live after I completely awoke before I found it was not my husband. 
A part of my dress was over my face, and I got it off, and he was 
moving away. As soon as I found it was not my husband, I pulled 
my husband's hair to wake him. The prisoner jumped off the bed." 

On cross-examination she added, " Till I got my dress off my face I 
thought it was my husband. After he had finished I pulled the dress 
off my face. I was completely awakened by the man having connec- 
tion with me and the baby being moved." On re-examination she said, 
" The baby was pushed on further into the bed." 

The jury found this evidence, as I have stated it, to be true. 

Upon these facts the prisoner's counsel, Mr. Cottingham, submitted 
that the indictment was not sustained, and quoted 1 Russell on Crimes, 
ed. of 1843, p. 677; Rex v. Jackson, Russ. & Ry. 487; Reg. v. Saun- 
ders, 8 C. <Sb P. 265 ; Rex v. Williams, 8 C. & P. 286 ; Reg. v. Camp- 

1 Smith, Stephen, and Manisty, JJ., Pollock, B., and Colekidge, C. J., also 
delivered opinions against the conviction. Mathew and Grantham, JJ., and 
HuDDLESTON, B., agreed. Field, J., also delivered an opinion supporting the con- 
viction, and Day and Charles, JJ., agreed. See, contra. Keg. v. Bennett, 4 F. & F. 
1105 ; Reg. u. Sinclair, 13 Cox C. C. 28. — Ed. 



208 EEGINA V. BAKROW. [CHAP. III. 

lin, 1 Den. C. C. 89. Reg. v. Fletcher, 8 Cox C. C. 131, was also 
referred to. 

I thought, especially on. the authority of the judgment delivered by 
Lord Campbell in Reg. v. Fletcher, 8 Cox C. C. 131, that the case 
was made out, inasmuch as it was sufficient that the act was done by 
force and without consent before or afterwards ; that the act itself, 
coupled with the pushing aside the child, amounted to force ; and there 
was certainly no consent before, and the reverse immediately after- 
wards ; but I reserved the point for the Court of Criminal Appeal. 

No counsel appeared on either side. 

BoviLL, C. J. We have carefully considered the facts as stated in 
this case. It does not appear th at the wQ ca an, up oiLwhom the o ffenc e 
was alleg ;"fl tfl hflv^ }^"rr\ nnmmitt p'^i ' Yas as leep or unco nscious^t th 
time when the act of connection commenced! li musi 



fore, that the acL w<i=l dOllB vwth—the-eorrsBTrt of the prosecutrix, though 
that consent was obtained by fraud. It falls, therefore, within the 
class of cases which decide that, where conse nt is obtained bj' fraud, 
the act done does not amounLjtQjape.^ 

Channell, a., IBtles, Blackburn, and Lush, JJ., concurred.^ 

Conviction quashed. 

1 Now, rape being defined to be sexual connection with a woman without her 
consent, or without and therefore against her will, it is essential to consider what is 
meant and intended by consent. Does it mean an intelligent, positive concurrence of 
the will of the woman, or is the negative absence of dissent sufficient ■? In these sur- 
gical cases it is held that the submission to an act believed to be a surgical operation 
does not constitute consent to a sexual connection, being of a wholly different charac- 
ter ; there is no consensus quoad hoc. In the case of personation there is no consensus 
quoad hanc personam. Can it be considered that there is a consent to the sexual con- 
nection, it being manifest that, had it not been for the deceit or fraud, the woman 
would not have submitted to the act ? In the cases of idiocy, of stupor, or of infancy, it 
is held that there is no legal consent, from the want of an intelligent and discerning will. 
Can a woman, in the case of personation, be regarded as consenting to the act in the 
exercise of an intelligent will 1 Does she consent, not Itnowing the real nature of the 
act ? As observed by Mr. Curtis, she intends to consent to a lawful and marital act, 
to which it is her duty to submit. But did she consent to an act of adultery ■? Are 
not the acts themselves wholly different in their moral nature ? The act she per- 
mitted cannot properly be regarded as the real act which took place. Therefore the 
connection was done, in my opinion, without her consent, and the crime of rape was 
constituted. I therefore am of opinion that the conviction should stand confirmed. — 
May, C. J., in Reg v. Dee, 15 Cox C. C. 379, 587. 

In accordance with the principal case, see Reg. e. Fletcher, 10 Cox C. C. 248 ; Don 
Moran «. People, 25 Mich. 356 ; Wyatt v. State, 2 Swan, 394. — Ed. 



SECT. III.] COMMONWEALTH V. STRATTOK. 209 

WRIGHT'S CASE. 

Leicester Assizes. 1604. 

[Reported Co. Lit. 127 a.] 

In my circuit in anno 1 Jacobi regis, in the county of Leicester, one 
Wriglit, a young, strong, and lustie rogue, to make himselfe impotent, , 
thereby to have the more colour to begge or to be relieved without put- 
ting himselfe to any labour, caused his companion to strike off his left! 
hand ; and both of them were indicted, fined, and ransomed there- 
fore, and that by the opinion of the rest of the justices for the cause ^ 
aforesaid. 



COMMONWEALTH v. STRATTON. 

Supreme Judicial Court of Massachusetts. 1873. 

[Reported 114 Massachusetts, 303.] 

Indictments, each charging that the defendant, upon a certain young 
woman in the indictment named, made an assault and administered to 
her a large quantit}' of cantharides, " the same being ... a deleterious 
and destructive drug," with intent to injure her health, whereby she 
became sick, and her life was despaired of. Both cases were tried 
together. 

It appeared at the trial in the Superior Court, before Devens, J., 
that the defendant, in company with another young man, called upon 
the young women in the indictments named, and during the call offered 
them some figs, which they ate, they having no reason to suppose that 
the figs contained any foreign substance ; that a few hours after, both 
j'oung women were taken sick, and suffered pain for some hours ; that 
the defendant and his companion had put into the figs something they 
had procured by the name of "love powders," which was represented 
by the person of whom they got it to be perfectly harmless. 

There was evidence that one of the ingredients of tliese powders was 
cantharides, and that this would tend to produce sickness like that 
which the j'Oung women suffered. 

The Court instructed the jury that if it was shown beyond a reason- 
able doubt " that the defendant delivered to the women a harmless arti- 
cle of food, as figs, to be eaten bj- them, he well knowing that a foreign 
substance or drug was contained therein, and concealing the fact, of 
which he knew the women to be ignorant, that such foreign substance 
or drug was contained therein, and the women eating thereof by the in- 
vitation of the defendant were injured in health by the deleterious char- 
acter of the foreign substance or drug therein contained, the defendant 
should be found guilty of an assault upon them, and this, although he 
did not know the foreign substance or drug was deleterious to health, 
had been assured that it was not, and intended only to try its effect 
upon them, it having been procured by him under the name of a ' love 



210 COMMONWEALTH V. STEATTON. [CHAP. III. 

powder,' and he being ignorant of its qualities or of the effects to be 
expected from it." 

The jury found the defendant guilty of a simple assault in each case, 
and he alleged exceptions. 

W. Colburn, for the defendant. 

G. R. Train, Attorney-General, for the Commonwealth. 

Wells, J. All the judges concur that the evidence introduced at 
the trial would warrant a conviction of assault and battery or for a sim- 
ple assault, which it includes ; and in the opinion of a majority of the 
court, the instructions given required the jury to find all that was es- 
sential to constitute the offence of assault and battery. 

The jury must have found a physical injury inflicted upon another 
person by a voluntary act of the defendant directed toward her, which 
•was without justification and unlawful. Although the defendant was 
ignorant of the qualities of the drug he administered and of the effects 
to be expected from it,_and had been assured and believed that it was 
not deleterious to health, yet he knew it was not ordinary food, that 
the girl was deceived into taking it, and he intended that she should 
be induced to take it without her conscious consent, by the deceit 
which he practised upon her. It is to be inferred from the statement 
of the case that he expected that it would produce some effect. In the 
most favorable aspect of the facts for the defendant he administered 
to the girl, without her consent and by deceit, a drug or " foreign sub- 
stance," of the probable effect of which he was ignorant, with the ex- 
press intent and purpose " to try the effect of it upon " her. This in 
itself was unlawful, and he must be held responsible for whatever effect 
it produced. Being an unlawful interference with the personal rights 
of another, calculated to result and in fact resulting in physical injury, 
the criminal intent is to be inferred from the nature of the act and its 
actual results. 3 Bl. Com. 120; Rex v. Long, 4 C. & P. 398, 407, 
note. The deceit, by me ans of w hif.h the ^r\ wgrs induced to take the 
drug, wRS_a. TraTuf npn n her will , pqiiivp.l ent toTorc ein nTBrf>«M»eri ng 
it: — Com monwealth v. Burke, 105 Mass. 376 ; Reglna v. Louk, 12' 
Cox C. C. 244; Regina v. Sinclair, 13 Cox C. C. 28. 

Although force and violence are included in all definitions of assault, 
or assault and battery, yet where there is physical injury to another 
person, it is sufficient that the cause is set in motion by the defendant, 
or that the person is subjected to its operation by means of anj' act or 
control which the defendant exerts. In 3 Chit. Grim. Law, 799, is a 
count, at comtnon law, for an assault with drugs. For other instances 
of assault and batter^^ without actual violence directed against the per- 
son assaulted, see 1 Gabbett's Grim. Law, 82 ; Rose. Crim. Ev. (8th 
ed.) 296 ; 3 Bl. Com. 120 and notes ; 2 Greenl. Ev. § 84. 

If one should hand an explosive substance to another and induce 
him to take it bj' misrepresenting or concealing its dangerous qualities, 
and the other, ignorant of its character, should receive it and cause it 



SECT. III.] KEGINA V. MAETIN. 211 

to explode in his pocket or baud, and should be injured by it, the offend- 
ing party would be guilty of a battery, and that would necessarily in- 
clude an assault ; although he might not be guilty even of an assault, 
if the substance failed to explode or failed to cause any injury. It 
would be the same if it exploded in his mouth or stomach. Tf t.hi^j 
whic h _ r n, ii n r ^ th o i n juiy It) bet In iiiollou by - the wrongful act of tho d a- 
t feiidant, it cannot be material w hether it acts upon the person injured 

externally or internally, by mecnanical or ehfemical force d ' — 

In Kegina v. Button, 8 C. & P. 660, one who put Spanish flies into 
coffee to be drunk by another was convicted of an assault upon the per- 
son who took it, although it was done " only for a lark." This decision 
is said to have been overruled in England. Regina v. Dil worth, 2 
Mood. & Rob. 531 ; The Queen v. Walkden, 1 Cox C. C. 282 ; Re- 
gina V. Hanson, 2 C. & K. 912. In the view of the majority of the 
court, the last onl^"^ of these three cases was a direct adjudication, and 
that entirely upon the authority of mere dicta in the other two and 
without any satisfactory reasoning or statement of grounds ; and the 
earlier decision in Regina v. Button is more consistent with general 
principles, and the better law.* deceptions overruled. 



REGINA V. MARTIN. 
Ckown Case Reserved. 1840. 

[Reported 2 Moodij, 123.] 

The prisoner was tried before Mr. Baron Alderson upon an indict- ■, 
ment, the first count of which charged him with carnallj' knowing and 
abusing Esther Ricketts, a girl abo\e ten and under twelve years of age. 

The second count was for an assault on Esther Ricketts with intent 
carnally to know and abuse her. The third count was for a common 
assault. 

Godson, for the prisoner, contended that, supposing the fact to have 
been done by the consent of the prosecutrix, no conviction could take 
place on the second and third counts. 

The learned judge left the question to the jury, who found the fact 
that the prosecutrix had consented ; and he then directed a verdict of y 
guilty on the ground that the prosecutrix was by law incapable of giving | 
her consent to what would be a misdemeanor by statute. 

But as Godson stated that the point was doubtful and had been 
otherwise decided before, tbe learned judge respited the judgment. 
1 Ace. Carr v. State (Ind.), 34 N. E. 533. —Ed. 



212 EEGINA V. BRADSHAW. [CHAP. III. 

It appeared to the learned judge clear that if the indictment had 
charged an attempt to commit the statutable misdemeanor, the pris- 
oner would clearly have been liable to conviction ; but tlie learned judge 
was not free from doubt as to the present case, in which an assault was 
charged. 

This case was considered at a meeting of the judges in Hilarj' term, 
1840, and they all thought that the proper charge was of a misdemeanor 
in attempting to commit a statutable offence, and that the convictiou 
was wrong.* 



REGINA V. BRADSHAW. 
Leicester Assizes. 1878. 

[Reported 14 Cox C. C. 83.] 

William Bradshaw was indicted for the manslaughter of Herbert 
Dockerty, at Ashb5^-de-la-Zouch, on the 28th day of February. 

The deceased met with the injury which caused his death on the 
occasion of a football match played between the football clubs of Ashby- 
de-la-Zouch and Coalville, in which the deceased was a player on the 
Ashb^' side, and the prisoner was a player on the Coalville side. The 
game was played according to certain rules known as the " Association 
Rules." ^ After the game had proceeded about a quarter of an hour, 
the deceased was " dribbling" the ball along the side of the ground in 
the direction of the Coalville goal, when he was met by the prisoner, 
who was running towards him to get the ball from him or prevent its 
farther progress ; both players were running at considerable speed ; on 
approaching each other, the deceased kicked the ball beyond the pris- 
^oner, and the prisoner, by way of "charging" the deceased, jumped in 
• the air and struck him with his knee in the stomach. The two met, 
' not directl}'' but at an angle, and both fell. The prisoner got up un- 
hurt, but the deceased rose with difficulty and was led from the ground. 
He died next day after considerable suffering, the cause of death being 
a rupture of the intestines. 

^ "It is a presumption of law that a girl under ten years of age is incapable of con- 
senting to the offence of rape (Pen. Code, sec. 261); and as such an offence includes an 
attempt to commit it, accompanied by such force and violence upon the person as con- 
stitutes an assault, a girl under ten years of age is incapable in law of consenting to 
the assault in connection with the attempt to commit the offence. Whether the girl 
in fact consented or resisted is therefore immaterial. Being incapable of consenting to 
an act of carnal intercourse, it was criminal for the defendant to make an assault upon 
her to commit such an act." McKee, J., in People v. Gordon, 70 Cal. 467, 468. Ed. 

2 Etherington Smith, in opening the case for the prosecution, was proceeding to ex- 
plain the "Association Eules " to the jury, and to comm«nt upon the fact of whether 
the prisoner was or was not acting within those rules, when Bramwell, L. J., inter- 
posed, saying, "Whether within the rules or not the prisoner would be guilty of man- 
slaughter if while committing an unlawful act he caused the death of the deceased." 



SECT. III.] EEGINA V. BEADSHAW. 213 

Witnesses were called from both teams whose evidence differed as to 
some particulars, those most unfavorable to the prisoner alleging that 
the ball had been kicked b}- the deceased and had passed the prisoner 
before he charged ; that the prisoner had therefore no right to charge 
at the time he did ; that the charge was contrary to the rules and prac- 
tice of the game and made in an unfair manner, with the knees protrud- 
ing ; while those who were more favorable to the prisoner stated that 
the kick by the deceased and the charge by the prisoner were simultan- 
eous, and that the prisoner had therefore, according to the rules and 
practice of the game, a right to make the charge, though these wit- 
nesses admitted that to charge by jumping with the knee protruding 
was unfair. One of the umpires of the game stated that in his opinion 
nothing unfair had been done.-' 

J3RAMWELL, L. J., in summing up the case to the jury, said : ILThg— 
question fnr ypn^tr^ Hpi^jde is whetJi er the Hpath nf the deceased was 
oftHSgd b^'t he mila.wfnl act of the prisoner. There is no doubt that the 
-prisoiXer's act caused the death, and the question is whether that act 
was unlawful. No rules or practinp. of any game whatever can m ake 
that lawful which is unlawf ul by the law of the_ land ; and the law of " 
the-tenf sa3-s you shall not do that which is likelytcT^ause the death of 
another. For instance, no persons can by agreement go out to fight 
with deadly weapons, doing by agreement what the law saj's shall not 
be done, and thus shelter themselves from the consequences of their 
acts. Therefore, in one way you need not concern j'ours(ilves with the 
rules of football. But, on the other hand, if a man is playing accord- 
ing to the rules and practice of the game and not going beyond it, it 
may be reasonable to infer that he is not actuated by any malicious 
motive or intention, and that he is not acting in a manner which he 
knows will be likely to be productive of death or injury. But, inde- 
pendent of the rules, if the prisoner intended to cause serious hurt to 
the deceased, or if he knew that in charging as he did he might produce 
serious injury, and was indiflferent and reckless as to whether he would 
produce serious injury or not, then the act would be unlawful. In 
either case he would be guilty of a criminal act, and you mus^ find him ' 
guilty ; if you are of a contrarj' opinion you will acquit him." His 
lordship carefully reviewed the evidence, stating that no doubt the 
game was, in any circumstances, a rough one ; but he was unwilling to 
decry the manly sports of this country, all of which were no doubt 
attended with more or less danger. Verdict, Not guilty. 

1 Arguments of counsel are omitted. 



214 COMMONWEALTH V. COLLBERG. [CHAP. III. 



COMMONWEALTH v. COLLBERG. 
Supreme Judicial Coukt of Massachusetts. 1875. 

[Reported 119 Mass. 350.] 

Two indictments : one for an assault and battery by Benjamin F. 
CoUberg upon Charles E. Phenix ; and the other for an assault and bat- 
tery by Phenix upon CoUberg. Both indictments were founded upon 
and supported by the same evidence. 

At the trial of the two indictments in the Superior Court before 
Lord, J., there was evidence for the Commonwealth tending to show 
that about six o'clock on the evening of Sunday, August 22, 1875, 
CoUberg and Phenix met near the station of the Boston and Maine 
Railroad in Maiden and had a slight altercation, as a result of which 
Collberg bantered Phenix to fight him ; that Phenix declined on the 
ground that he did not want to fight with his best clothes on, but said 
that if Collberg would wait until he could go home and change his 
clothes, they would go to some place outside of the town and settle it ; 
that thereupon Phenix did go home and change his clothes, and he and 
Collberg met at a retired place, remote from habitations and thorough- 
fares, and fought with each other in the presence of some flftj- or seventj'- 
five persons who had gathered there, and that the fight continued until 
Collberg said that he had enough, when it ceased and the parties went 
home ; that the next day Collberg and Phenix were a good deal bruised 
and looked as if they had been fighting. 

The defendants testified that the3' had been acquainted with each 
other for a period of five or six years, during which time thej- had 
always been on the most friendly terms, and were so at the time of the 
act complained of, and subsequently ; that during the period of their 
acquaintance they had engaged at various times in wrestling-matches 
with each other, all of which had been carried on in a friendly spirit 
and without engendering any ill feeling between them ; that on the day 
mentioned in the indictment thej' met towards evening near the station 
of the Boston and Maine Railroad in Maiden, where they had some talk 
about a recent wrestling-match that had taken place in New York, and 
growing out of this, as to previous contests of this character which had 
taken place between them ; that after some talk about their matches, 
the}' agreed to go then to some place where they should not disturb &ny 
one and have another trial of their agility and strength in this direction ; 
that they shortly afterwards went to such a place and engaged in a 
" run and catch " wrestle with each other, without any anger or malice, 
or any intention to do each other bodily harm ; that anj- injuries which 
they inflicted upon each other were inflicted accidentally and b^' mutual 
consent while voluntarily continuing in such contest. 

There was no evidence of any uproar or outcries when the contest 



SECT. III.] COMMONWEALTH V. COLLBEEG. 215 

took place, or tliat any one was disturbed thereb}-, except that the par- 
ties were fighting in presence of a crowd of from fifty to one hundred 
persons who had collected together. After the evidence was all in, the 
defendants asked the judge to instruct the jury as follows : — 

" If the jurj' are satisfied that whatever acts and things the defend- 
ants did to each other they did by mutual consent, and that the struggle 
between them was an amicable contest voluntarily continued on both 
sides without anger or malice, and simply for the purpose of testing 
their relative agilitj- and strength, then there is no assault and battery, 
and the defendants must be acquitted." 

The judge declined to give this instruction, but instructed the jury 
upon this branch of the case in substance as follows : " That if the de- 
fendants were simply engaged in a wrestling match, that being a lawful 
sport, they could not be convicted of an assault and battery ; but if by 
mutual agreement between themselves, previously made, they went to 
a retired spot for the purpose of fighting with each other and for the 
purpose of doing each other physical injury by fighting, with a view to 
ascertain by a trial of their skill in fighting which was the best man, 
and there engaged in a fight, each endeavoring to do and actually doing 
all the physical injury in his power to the other, and if, in such contest, 
each did strike the other with his fist for the purpose of injuring him, 
each may properly be convicted of assault and battery upon the other, 
although the whole was done by mutual arrangement, agreement, and 
consent, and without anger on the part of either against the other." 

To this instruction, and to the refusal of the judge to give the in- 
struction prayed for, the defendants alleged exceptions. 

Gf^. /S. Scammon, for the defendants. 

W. C. Loring (<7. B,. Train., Attorney- General, with him), for the 
Commonwealth. 

Endicott, J. It appears by the bill of exceptions that the parties 
by mutual agreement went out to fight one another in a retired placet 
and did fight in the presence of from fifty to one hundred persons. 
Both were bruised in the encounter, and the fight continued until one 
said that he was satisfied. There was also evidence that the parties 
went out to engage in and did engage in a " run and catch" wrestling 
match. We are of opinion that the instructions given by the presiding 
judge contained a full and accurate statement of the law. 

The common law recognizes as not necessarilj' unlawful certain 
manlj' sports calculated to give bodily strength, skill, and activity, and 
" to fit people for defence, public as well as personal, in time of need." 
Playing at cudgels or foils, or wrestling by consent, there being no 
motive to do bodily harm on either side, are said to be exercises ot 
this description. Fost. C. L. 259, 260; Com. Dig. Plead. 3 m. 18. 
But prize-fighting, boxing-matches, and encounters of that kind serve 
no useful purpose, tend to breaches of the peace, and are unlawful 
even when entered into by agreement and without anger or mutual ill- 
will. Fost. C. L. 260 ; 2 Greenl. on Ev. § 85 ; 1 Stephens N. P. 211. 



216 



EEX V. STKATTON. [CHAP. III. 



If one party license another to beat him, such license is void, because 
it is against the law. Matthew v. Ollerton, Comb. 218. In an action 
for assault the defendant attempted to put in evidence that the plain- 
tiff and he had boxed bj- consent, but it was held no bar to the action, 
for boxing was unlawful, and the consent of the parties to fight could 
not excuse the injur}-. Boulter v. Clark, Bull. N. P. 16. The same 
rule was laid down in Stout v. Wren, 1 Hawks (N. C), 420, and in 
Bell V. Hanslej', 3 Jones (N. C), 131. In Adams v. Waggoner. 33 
Ind. 531, the authorities are reviewed, and it was held that it was no 
bar to an action for assault that the parties fought with each other by 
mutual consent, but that such consent msiy be shown in mitigation of 
damages. See Logan v. Austin, 1 Stew. (Ala.) 476. It was said bj' 
Coleridge, J., in Regina v. Lewis, 1 C. & K. 419, that " no one is justi- 
fied in striking another except it be in self-defence, and it ought to be 
known that whenever two persons go out to strike each other, and do 
so, each is guilty of an assault ; " and that it was immaterial who 
strikes the first blow. See Rex v. Perkins, 4 C. & P. 537. 

Two cases only have been called to our attention where a difl'erent 
rule has been declared. In Champer v. State, 14 Ohio St. 437, it was 
held that an indictment against A. for an assault and batter}' on B. was 
not sustained by evidence that A. assaulted and beat B. in a fight at 
fisticuffs, by agreement between them. This is the substance of the 
report, and the facts are not disclosed. No reasons are given or cases 
cited in support of the proposition, and we cannot but regard it as 
opposed to the weight of authority. In State v. Beck, 1 Hill (S. C), 
363, the opinion contains statements of law in which we cannot concur. 

Exceptions overruled. ■ 



SECTION IV. 

Fault of the Injured Party. 

(d) CONTRIBUTOKY CriMB. 

REX V. STRATTON. 
Nisi Prius. 1809. 

[Reported 1 Campbell, 549.] 

Indictment for a conspiracy to deprive one Thompson of the oflRce 
of secretary to the Philanthropic Annuity Society, and to prosecute 



SECT. IV.] EEGINA V. . 217 

him, without any reasonable or probable cause, for obtaining money 
upon false pretences. It appeared that this society is an unincorpor- 
ated company, with transferable shares ; that there was a violent dis- 
pute among the subscribers as to the choice of secretary ; that one 
party, headed by the defendants, cashiered the prosecutor ; that he 
still went on collecting subscriptions, and that they indicted him for 
obtaining money upon false pretences, of which he was acquitted. 

Lord Ellenborough. This society was certainly illegal. There- 
fore, to deprive an individual of an office in it, cannot be treated as an 
injury. When the prosecutor was secretary to the society, instead of 
having an interest which the law would protect, he was guilty of a 
crime. In Dodd's case, all the judges of this court were agreed upon 
the illegality of these associations ; and I understand there has since 
been a nonsuit in the Common Pleas upon the same ground. Nor can 
I say that the prosecutor was indicted without reasonable or probable 
cause. I though t he was not guilty of th e offence i mputed to him ; b e- 
cause it di(tTif>Tr"appRaT tha.t he acted wit,h a. Trandnlpnt, purpose. B ut 
-m oney up » ft -arjalse- 43retence. He pretended that 
there~TfasT;hen a real, legal society, to which he was secretary ; whereas 
no such society existed. The defendants must all be acquitted.^ 



REGINA V. 



Central Criminal Court. 1845. 

[Reported 1 Cox C. C. 250.] 

The defendant was indicted for uttering counterfeit coin. Evidence 
was adduced to show that he had given a counterfeit sovereign to a 
girl with whom he had had intercourse. 

£odkin, in opening the case for the prosecution, referred to E. v. 
Page, 8 C. & P. 122, in which Lord Abinger ruled that the giving a 
piece of counterfeit money away in charity was not an uttering within the 
2 Wm. IV. c. 34, § 7, although the person giving knew it to be coun- 
terfeit, as there must be some intention to defraud. The learned 
counsel contended that the present case was clearly distinguishable, 
even supposing that to be the law, and he apprehended that the ques- 
tion for the jury would be, whether the coin had been passed with a 
knowledge of its being counterfeit and with the intention of putting it 
into circulation. 

Lord Denman, C. J. (in summing up). As to the law of this case, 
my learned brother (Coltman, J.) apd myself are clearly of opinion 
that if the deXeJldantgave tliecoin_to tite wnmin under thp_ i:ircum- 
stances stated, knowing it to be counterfeit, he is guilty of the offence 



1 See Rex v Heacall, 5 C. & P. 454; Reg. v. Hunt, 8 C. & P. 642; Com. v. Smith. 
129 Mass). 1U4. — Jil). 



218 EEGINA V. HUDSON. [CHAP. III. 

charged. We do not consider the decision of Lord Abinger to be in 
point ; that was a case of charity ; at the same time we have great 
doubts as to the correctness of that ruling, and if a similar case were to 
arise we should reserve the point. ^ 



KEGINA V. HUDSON. 
Crown Case Eesehved. 1860. 

[Reported S Cox C. C. 305 ] 

Case reserved for the opinion of this court, b)- J. B. Maule, Esq., 
barrister-at^law, sitting as Deputj- for the Recorder of York. 

At the Epiphany Sessions, 1860, held for the city of Yorlc, the pris- 
oners were jointly indicted and tried before me upon an indictment, the 
two first counts of which charged them with an oflFence under the 8 & 
9 Vict. c. 109. 

Third count. The prisoners were charged with a conspiracy to cheat 
in the following form : — 

" That they unlawfully and fraudulentl}- did combine, confederate, 
and conspire together with divers other persons to the jurors unknown, 
by divers unlawful and fraudulent devices and contrivances, and by 
divers false pretences, unlawfully to obtain from the said A. Ehodes 
the sum of £2 10s. of the money of the said A. Rhodes, and unlaw- 
fully to cheat and defraud the said A. Rhodes of the same, against the 
peace, etc.'"' 

The evidence disclosed that the three prisoners were in a public house 
together with the prosecutor, Abraham Rhodes, and that in concert 
with the other two prisoners, the prisoner John Dewhirst placed a peu- 
case on the table in the room where they were assembled and left the 
room to get writing-paper. Whilst he was absent the other two pris- 
oners, Samuel Hudson and John Smith, were the only persons left 
drinking with the prosecutor ; and Hudson then took up the pen-case 
and took out the pen from it, placing a pin in the place of it, and put 
the pen that he had taken out under the bottom of the prosecutor's 
drinking-glass ; and Hudson then proposed to the prosecutor to bet the 
prisoner Dewhirst when he returned that there was no pen in the pen- 
case. The prosecutor was induced bj' Hudson and Smith to stake 50s. 
in a bet with Dewhirst upon his returning into the room, that there was 
no pen in the pen-case ; which money the prosecutor placed on the 
table, and Hudson snatched up to hold. The pen-case was then turned 

1 Ace. Com. V. Woodbury, Thach. (Mass.) 47. 

2 Contra, People v. Wilson, 6 Johns. 320. — Ed. 



SECT. IV.J EEGINA V. HUDSON. 219 

lup into thQ prosecutor's hand, and another pen with the pin fell into 
his hand, and then the prisoners took his money. 

Upon this evidence it was objected, on behalf of the prisoners, that 
no offence within the meaning of the 8 & 9 Vict. c. 109, was proved b}' 
it, and that the facts proved in evidence did not amount to the offence 
charged in the third count. 

I thought the objection well founded as to the offence under the 8 & 
9 Vict. c. 109, but held that the facts in evidence amounted to the 
offence charged in the third count, and directed the jury to return a 
separate verdict on each count, a case having been asked for by the 
prisoners' counsel, for the consideration of the Court for Crown Cases 
Reserved. 

The jury returned. a verdict of guilty on each of the three counts. 

The prisoners were sentenced to eight months' imprisonment, and 
■committed to prison for want of sufficient sureties. 

If the court for the consideration of Crown Cases Reserved shall be 
of opinion that the above facts in evidence constituted in law any one 
of the offences charged in the indictment, and was evidence to go to the 
jury in support thereof, the verdict is to stand for such of the counts in 
which the offence is laid to which the evidence applies. 

Price, for the prisoners. As to the third count, to sustain that the 
■evidence should have shown such a false pretence as per se would con- 
stitute the ordinary misdemeanor of false pretences. 

Pollock, C. B. Why so? This is a count for conspiracy to cheat. 

Price. Yes, by false pretences. 

Channell, B. If the count had said merely to conspire, and had 
■omitted the words " by false pretences," it would have been good. 

Blackburn, J. Here the prisoners cheated_the prosecutor, intcu the 
belief that he was j^ciing tn rhofiitj whrn in fi pt he was to be cheatp d. 
""" Price. This is a mere private deceit, not concerning the public, which 
the criminal law does not regard, but is a deceit against which common 
prudence might be guarded. There is no evidence of any indictable 
•combination to cheat and defraud. 

Channell, B. If two persons conspire to puff up the qualities of a 
horse and thereby secure an exorbitant price for it, that is a criminal 
offence. 

Price. That affects the public. At the trial the present case was 
likened to that of Rex v. Barnard, 7 C. & P. 784, where a person at 
'Oxford, who was not a member of the university, went for the purpose 
of fraud, wearing a commoner's gown and cap, and obtained goods. 
This was held a sufficient false pretence. The present case, however, 
was nothing more than a bet on a question of fact, which the prosecu- 
tor might have satisfied himself of by looking at the pencil-case. It is 
more like an ordinary conjuring-trick. Besides, here the prosecutor 
himself intended to cheat one Of the prisoners by the bet. 

No counsel appeared for the prosecution. 



220 COMMONWEALTH V. MORRILL. [CHAP. III. 

Pollock, C. B. We are all of opinion that the conviction on the 
third count is good and ought to be supported. The count is in the 
usual form, and it is not necessar}- that the words "false pretences" 
stated in it should be understood in the technical sense contended for 
by Mr. Price. There is abundant evidence of a conspirac}- by the pris- 
oners to cheat the prosecutor, and though one of the ingredients in the 
case is that the prosecutor himself intended to cheat one of the prisoners, 
that does not prevent the prisoners from liability to be prosecuted upon 
this indictment. Conviction affirmed. 



COMMONWEALTH «. MORRILL. 

Supreme Judicial Court op Massachusetts. 1851. 

[Reported 8 Gushing, 571.] 

This was an indictment which alleged that the defendants, Samuel 
G. Morrill and John M. Hodgdon, on the 17th of September, 1850, at 
Newburyport, ' ' devising and intending one James Lynch bj' false pre- 
tences to cheat and defraud of his goods, did then and there unlawfully, 
knowingly, and designedly falsely pretend and represent to said Lynch 
that a certain watch which said Morrill then and there had, and which 
said Morrill and Hodgdon then^ an4Jhere proposed ajid_oflfired_J;g_e3i:- 
change with said Lynch for tw o other watclie"5_ lli£lo5ging to-said Ljnch, 
WJC5~a gold watcli of eighteen carats fine and was_oLgreat value, to wit, 
of the value ot eighty" dollars ; and the said Lynch, then and there be- 
lieving the said false pretences and representations so made as afore- 
said by said Morrill and Hodgdon, and being deceived thereby, was 
induced by reason of the false pretences and representations so maile 
as aforesaid to deliver, and did then and there deliver, to the said Mor- 
rill the two watches aforesaid, belonging to said Lynch, and of the value 
of twenty dollars, and the said Morrill and Hodgdon did then and there 
receive and obtain the two said watches, the property of said Lynch, 
as aforesaid, in exchange for the said watch, so represented as a gold 
watch as aforesaid, by means of the false pretences and representa- 
tions aforesaid, and with intent to cheat and defraud the said L3-nch of 
his said two watches, as aforesaid ; whereas in truth and in fact said 
, watch so represented by said Morrill and Hodgdon as a gold watch, 
Y eighteen carats fine, and of the value of eightj- dollars, was not then 
" and there a gold watch, and was not then and there eighteen carats 

fine, and was then and there of trifling value," etc. 
f At the trial in the Court of Common Pleas, before Hoar, J., it ap- 
peared in evidence that Lynch represented his watches, one of which 
was of silver and the other of yellow metal, as worth fifty dollars ; and 
on the testimony of the only witness for the Commonwealth who was a 
judge of the value of watches, thej- were worth not exceeding fifteen 



SECT. IV.J COMMONWEALTH V. MORRILL. 221 

dollars. L3-ncb testified that his silver watch cost him fifteen dollars ; 
that he received the other in exchange for two, which cost him respec- 
tively seven dollars and thirteen dollars ; and that he believed it to be 
worth thirty dollars. 

The defendant requested the presiding judge to instruct the jmy that 
if L3nch's watches were not worth Mtj dollars, or some considerable 
part of that sum, but were of merely trifling value, this indictment 
could not be maintained. But the judge instructed the jurj' that if they 
supposed that each of the parties was endeavoring to defraud the other, 
and Lj-nch knew that his watches were of little value, the jurj- should 
not convict the defendants merely because they had the best of the bar- 
gain ; but that if the defendants made the false representations charged 
in the indictmeiit, with the intent to defraud, knowing them to be false, 
and they were such as would mislead and deceive a man of ordinary I 
prudence, and Lynch, bj' reason of the representations, and trusting in 
them, parted with his property and was defrauded, it was not necessary 
to show that he was defrauded to the extent charged in the indictment, 
provided he in good .faith parted with property' which he believed to be 
valuable, and was defrauded to any substantial amount, for example, 
to the amount of five dollars ^ and that the defendants might be con- 
victed, although, from the mistake of Lynch in over-estimating his 
propertj', he might not have been cheated to so great an extent as he 
at the time supposed. 

The jury found the defendants guilt)', who thereupon moved in arrest 
of judgment, on the ground that the indictment was insufficient; and 
this motion being overruled, they alleged exceptions to the order of the 
court, overruling the same, and also to the instructions aforesaid. 

W. C. Endicott, for the defendant. 

Clifford, Attornej^-General, for the Commonwealth. 

Dewey, J.'' The exceptions taken to the instructions of the presid- 
ing judge cannot be sustained. If it were true that the partj' from 
whom the defendants obtained goods bj- false pretences also made 
false pretences as to his goods which he exchanged with the defend- 
ants, that would be no justification for the defendants, when put on 
trial upon an indictment charging them with obtaining goods by false 
pretences, knowingly and designedly in violation of a statute of this 
Commonwealth. Whether the alleged misrepresentation of Lynch, 
being a mere representation as to the value or worth of a certain watch 
and an opinion rather than a statement of a fact, would be such false 
pretence as would render him amenable to punishment under this 
statute, might be questionable , but supposing that to_be ot herwise, and 
it should appear that Lynch had also violated the statute, th at would 
not justify the defendants. If the other party has also subjected him- 
self t6~a prosecution fora like ofiTence,' he also may be punished. This 

' Part of the opinion, referring to a question of pleading, is omitted. 



222 McCOED V. PEOPLE, [CHAP. III. 

would be much better than that both should escape punishment because 
each deserved it equally.^ 



McCORD V. PEOPLE. 
Court or Appeals of New York. 1871. 

[Reported 46 Neiv York, 470.] 

Error to the General Term of the Supreme Court in the first depart- 
ment to review judgment, affirming judgment of the Court of General, 
Sessions in and for the County of New York, convicting the plaintiff in 
■ error upon an indictment for false pretences. 

The plaintiff in error, Henry McCord, was tried and convicted in the- 
Court of General Sessions of the Peace, in and for the County of New- 
York, at the June term, 1870, upon an indictment charging in sub- 
stance that with intent to cheat and defraud one Charles C. Miller, he 
falsely and fraudulently represented, — 

" That he, the said Henrj- McCord, wa^s an officer attached to the 
bureau of Captain John Young's department of detectives, and that he 
had a warrant issued by .Justice Hogan, one of the police justices of 
the city of New York, at the complaint of one Henry Brinker, charging 
the said Charles C. Miller with a criminal offence and for his arrest ; 
and that the said Henry Brinker had promised him, the said Henry 
McCord, $200 for the arrest of him, the said Charles C. Miller." 

And that said Miller, believing such false representations, was in- 
duced to and did deliver to McCord a gold watch and a diamond ring.*' 

Per Curiam. If the prosecutor parted with his property upon the 
representations set forth in the indictment, it must have been for some 
unlawful purpose, a purpose not warranted b}' law. There was no. 
legitimate purpose to be attained by delivering the goods to the accused 
upon the statements made and alleged as an mducemeut to the act. 
What action by the plaintiff in error was promised or expected in, 
return for the property given is not disclosed. But whatever it was, it 
was necessarily inconsistent with his duties as an officer having a crimi- 
nal warrant for tlie arrest of the prosecutor, which was the character 
he assumed. The false representation of the accused was that lie was 
an officer and had a criminal warrant for the prosecutor. Tliere was 
no pretence of an}' agencv for or connection with any person or of any 
authority to do any act save such as his dutj' as such pretended officer 
demanded. 

The prosPfi^f,nr parted with his property M,s «,n ir^tln cement to a HM] ^ 

posed officer to violate the law and his duties ; and if in attempting to. 

i ^cc. J^eo. V. Mailiu (Ctl . ) , 30 roii. O l iiiii in m ■Cuiiunius, 16 Col. 4fl, 27 Pac. 
887. And see Com. o. Henry, 22 Pa. 253. — Ed. 

' Argmnents of counsel and the dissenting opinion of I'liCKUAJi, J,, are omitted. 



SECT. IV.] STATE V. PATTERSON. 22.3 

do this he has been defrauded, the law will not punish his confederate, 
although such confederate may have been instrumental in inducing the 
commission of the offence. TVpitVipr thp Ig.yy rp- pnhlin pnlioj- dntiigtin 
the prote ction of rogues in their dealings with each other, or to insure 
fSiFciealing and tr nthfnlnpsg ga hot,Yyf gn each other in their disho nest 
practices4__The design of the law is to protect those wtio, for sortTe 
3nest purpose, are induced upon false and fraudulent representations 
to give credit or part with their propertj' to another, and not to protect 
those who for unworthy or illegal purposes part' with their goods. Peo- 
ple V. Williams', 4 Hill, 9 ; Same v. Stetson, 4 Barb. 151. 

The judgment of the Supreme Court and of the Sessions must be 
reversed and judgment for the defendant.^ 



STATE V. PATTEESON. 

Supreme Court op Kansas. 1903. 

[Reported 66 Kan. 447.] 

BuBCH, J.^ The appellant was convicted of embezzlement of money 
which came into his hands by virtue of his oflScial position as treasurer 
of the city of Clyde. . . . 

The defence to the action was that appellant collected tlie money 
embezzled from persons engaged in unlawful traffic in intoxicating 
liquors in the city of Clyde, under an arrangement between such 
persons and the city wherebj' immunity from prosecution was secured 
to them. Counsel for appellant call this money "blood-money"; 
characterize its collection as "robbery," and, from their language, 
would seem to regard the transaction at least as infamous as that of the 
thief " in the sacristy with the fair adornments," whom Dante located 
as far down as the eighth circle of hell. And because of the utter 
indefensibility of the conduct of the city and of the appellant under 
the law, it is claimed he cannot be punished criminally. The defence 
is applied in many ways. It is said the citj' could not authorize the 
collection of such money ; that appellant could not act for the city 
in such business ; that he did not act as city treasurer, or by virtue 
of such office, and could exercise no official conduct in such an affair ; 
that money received by him Jromism-l) sonvoc' e ould no tr-a Hd^ij not, 
becom e the propert y of the, city ; and tliat, if it did become the city's 
mone}-, it was so uncleanthat the law of embezzlement will not take 
cognizance of it. The distri ct court excluded all evidence relating t9 
this def ence. In this it was norrec} ;. The defence is repugnant to law, 
t(j morality, and even to expediency in the regulation of the conduct 
of individuals in societj'. 

' Acr. State i: Crowley, 41 Wis. 271. But see Peo. «. Tompkins, (N. Y.), 79 
N. E. 326 — Ed. 

^ Part of the opinion is omitted. — Ed. 



224 STATE V. PATTEESON. [CHAP. III. 

In 1852 the Supreme Court of Massachusetts, in deciding that money 
accumulated by the illegal sale of intoxicating liquors was nevertheless 
the subject of larcenj', said : 

" That same common law, which, in its integrity and wisdom, re- 
fuses to lend itself to be the instrument, even indirectly, for the execu- 
tion of a criminal contract, will as little condescend to throw its mantle 
over crime itself. The law_£unishes jarceny, b^cause_it_ia-larceny ; 
and, therefore, ionej^ ^n5eTO n^£drefrthefl.»JJMWgh^ but steal 

his own«prop©i=ty, from himself or hisjjailee. 7 H. VI. 43a ; 3 Co. 
last. 11^: ijidTthe law punishes the larceny of property, not solely 
because of any rights of the proprietor, but also because of its own 
inherent legal rights as property ; and, therefore, e ven he. w^o larceni- 
ously tak es the stolen object from a thierVhose h ands hnvfi but iiist 
■etesgdnTpon it, may himself be conv icteiL-thef ofor, in ySgitg,-X>f^ie 
- ..iJjMTTgftT^j-i f t.hft possessinn r.f hiTTmrTipdiatp predecessor in crim e. 
This^rinciple is coeval with the common law itself as a collection of 
received opinions and rules, for we have to go back to the Year-books 
to find its first judicial announcement. The leading decision is the 
case of a so-called John at Stile, in 13 Edw. IV, 36, where it was 
held by the judges that if A. steal the goods of B., and afterwards 
C. steal the same goods from A., in such case C. is indictable both as 
to A. and as to B. This decision was afterwards aflBrmed arguendo in 
4 Hen. VII 56. 

" We do not say our doctrine is good law, merely because it was in 
principle so adjudged in the time of the Plantagenets and the Tudors ; 
but we say it is good law, also, because it is reasonable and just ; 
because every subsequent authority in England, such as Hale, 1 Hale, 
P. C. (Am. ed.) 507 ; East, 2 East, P. 0. 654 ; Russell, 2 Buss, on 
Crim. (6th Am. ed.) 89, has adopted and approved it; because it has 
been affirmed by modern judicial opinion in England ; Wilkin's Case, 
2 Leach, 586 ; because it has already been recognized in the United 
States; Ward v. The People, 3 Hill, 396; and because it thus bears 
that genuine stamp of venerable time, which consists, not in the 
antiquity of date — for there may be old errors as well as new ones — 
but in having stood the test of the scrutiny of many successive 
ages. . . . 

" If, looking beyond the mere question of property, we pass to con- 
siderations of public policy, this may be regarded in two points of view, 
one, of convenience in the administration of justice, the other, of higher 
ethical relation. As to the former point, it is not easy to conceive anj^- 
thing which would more seriously embarrass the public ministers of 
justice, and obstruct its administration, than if it were held that any 
element of illegalitj' in the acquisition of property rendered it incapa- 
ble of being the subject of larceny, and if, as a consequence, ihe 
necessity followed, in every case, to go into the inquiry how the part}' 
complaining acquired the property. 



SECT. JV.j STATE V. PATTEESOX. 225 

" As to the latter point, if the question be put in the form most 
favorable to the argument for the defendant here, it stands thus : of 
the alternative moral and social evils, which is the greater — ^to deprive 
property unlawfully acquired of all protection as such, and thus to dis- 
courage unlawful acquisition but encourage larcenj' ; or to punish, and 
so discourage larceny, though at the possible risk of thus omitting 
80 far forth to discourage unlawful acquisition ? The balance of public 
policy, if we thus attempt to estimate the relative weight of alternative 
evils, requires, it seems to us, that the larceny should be punished. 
Each violation _ of law is to he dealt witt i by its elf. Tk e. felonious ta k- 
ing has ite approuriate and specific puni shment; so also has EBfe 
nnlfiiwfrfTnnnuiriitiinn " (Commonwealth 'i;7~R On r liO) 10 Gush. 397.) 

Such is the law both of larceny and embezzlement in the United 
States. (State v. Cloutman, 61 N. H. 143 ; Commonwealth v. Smith, 
129 Mass. 104 ; Commonwealth v. Cooper, 130 id. 285'; Woodward v. 
The State, 103 Ind. 127, 2 N. E. 321 ; Stave v. O'Brien, 94 Tenn. 79, 
28 S. W. 311, 26 L. R. A. 252; People v. Hawkins, 106 Mich. 479, 
64 N. W. 736 ; The State v. Shadd, 80 Mo. 358 ; Miller & Smith v. 
The Commonwealth, 78 Ky. 15, 39 Am. Rep. 194 ; The State of Iowa 
V. May, 20 Iowa, 305 ; Bales v. The State, 3 W. Va. 685 ; State v. 
Littschke, 27 Ore. 189, 40 Pac. 167 ; Hertzler v. Geigley, 196 Pa. St. 
419, 46 Atl. 366, 79 Am. St. Rep. 724.) 

Crime does indeed beget crime, but such progeny cannot justify itself 

hefm-g't lie ld.W by its LillHUUi J »ru\ |iMt.Kfiil pirnntatra. 

Ttfe'judgment of the district court is therefore aflQrmed. All the 
Justices concurring. 



226 BEGINA V. HOLLAND. [CHAP. lU. 



SECTION V. 
Negligence of the Injured Party. 

REiSHNA V. HOLLAND. 

Liverpool Assizes. 1841. 

[Reported 2 Moody §■ Eobinson, 351.] 

Indictment for murder. The prisoner was charged with inflicting 
divers mortal blows and wounds upon one Thomas Grarland, and 
(among others) a cut upon one of his fingers. 

It appeared by the evidence that the deceased had been waylaid and 
assaulted by the prisoner, and that, among other wounds, he was 
severely cut across one of his fingers by an iron instrument. On being 
brought to the infirmary, the surgeon urged him to submit to the ampu- 
tation of the finger, telling him, unless it were amputated, he considered 
that his life would be in great hazard. The deceased refused to allow 
the finger to be amputated. It was thereupon dressed by the surgeon, 
and the deceased attended at the infirmary from day to day to have his 
wounds dressed ; at the end of a fortnight, however, lock-jaw came on, 
induced by the wound on the Bnger ; the finger was then amputated, 
but too late, and the lock-jaw ultimately caused death. The surgeon 
deposed that if the finger had been amputated in the first instance, he 
thought it most probable that the life of the deceased would have been 
preserved. 

For the prisoner, it was contended that the cause of death was not 
the wound inflicted by the prisoner, but the obstinate refusal of the 
deceased to submit to proper surgical treatment, by which the fatal 
result would, according to the evidence, have been prevented. 

Maule, J., however, was clearly of opinion that this was no defence, 
and told the jury that if the prisoner wilfully, and without any justifi- 
able cause, inflicted the wound on the party, which wound was ulti- 
mately the cause of death, the prisoner was guilty of murder ; that for 
this purpose it made no difference whether the wound was in its own 
nature instantly mortal, or whether it became the cause of death by 
reason of the deceased not having adopted the best mode of treatment ; 
the real question is whether in the end the wound inflicted by the 
prisoner was the cause of death. Guilty.^ 

1 Ace. Com. t). Hackett, 2 All. 136. — Ed. 



SECT, v.] KEGINA V. KEW. 227 



REGINA V. KEW. 

Suffolk Assizes. 1872. 

[Reported 12 Cox C. C. 355.] 

The prisoners were indicted for manslaughter. It appeared that on 
the 2d of June the prisoner, Jackson, who was in the employ of Mr. 
Harris, a farmer, was instructed to take' his master's horse and cart 
and drive the prisoner Kew to the Bungay railway station. Being late 
for the train, Jackson was driving at a furious rate, at full gallop, and 
ran over a child going to school and killed it. It was about two o'clock 
ill the afternoon, and there were four or five little children from five to 
seven years of age going to school unattended by any adult. 

Metcalfe and Simms Reeve, for the prisoners, contended that there 
was contributory negligence on behalf of the child running on the road, • 
and that Kew was not liable for the acts of another man's servant, he 
having no control over the horse and not having selected either the 
horse or the driver. 

Btles, J., after reading the evidence, said : Here the mother lets her 
child go out in the care of another child only seven j'ears of age, and . 
the prisoner Kew is in the vehicle of another man, driven bj' another 
man's servant, so not onl}' was Jackson not his servant but he did not 
even select him. It has been contended if there was contributorj- negli- 
gence on the children's part, then the defendants are not liable. No 
doubt contributory negligence would be an answer to a civil action. 
But who is the plaintiff here ? The Queen, as representing the nation ; 
and if they were all npg1iffptvt^|.ngpt.hpi ^I thin k their negligence would 
be TifTneTftrinp. pvejTII'-ttTPyh nd b eeii_^.dn1ts. IfLhe^ weFe 01 o^nion 
that tae pri soners were dr iving at a dan gflrnns pupa i" « fiMlp^^y "^*g*- 
gent ma nner7~then Lhsy ^re gui lty, I^' ^as true that Kew was^ ao* 
actually driving, but stiii a word f rom him might havp prevp ritrd ^" 
accident. If iiticessary ne would reserve the question of contributory 
negligence as a defence for the Court of Criminal Appeal. 

The jury acquitted both prisoners.' 

1 Ace. Reg. V. Longbottom, 3 Cox C. C. 439 ; Belk v. People, 125 111. 584 ; Crum 
». State, 64 Miss. 1, 1 So. 1. But see Reg. u. Bivchall, 4 F. & F. 1087. —Ed. 



228 COMMONWEALTH V. SLATTERT. [CHAP. III. 

SECTION VI. 

Condonation. 

4 Bl. Com. 133. Theft bote is where the party robbed not only 
knows the felon, but also takes his goods again, or other amends upon 
agreement not to prosecute. This is frequently called compounding of 
felony ; and formerly was held to make a man an accessory ; but it is 
now punished only with fine and imprisonment. This perversion of 
justice, in the old Gothic constitutions, was liable to the most severe 
and infamous punishment. And~ the Salic law ^'■lutroni eum similem 
habuit, qui fertum celare vellet, et occidte sine judice compositionem 
ejus admittere.'' Bj' statute 25 Geo. II. c. 36, even to advertise a re- 
ward for the return of things stolen, with no questions asked, or words 
to the same purport, subjects the advertiser and the printer to a forfeit- 
ure of £50 each.^ 1 Hawk. P. C. ch. 7, sect. 7. But the bare taking 
of one's own goods again which have been stolen is no offence at all 
unless some favor be shown to the thief. 



COMMONWEALTH v. SLATTERY. 
Supreme Judicial Court of Massachusetts. 1888. 

[Reported 147 Mass. 423.] 

Indictment for rape on Bridget Dpnovan.^ At the trial in the Supe- 
rior Court, before Dunbar, J. , the defendant asked the judge to instruct 
the jury " that, if said Donovan at any time after the act excused or 
forgave the defendant, then she ratified the act, and he cannot be con- 
victed in the case." The judge refused so to instruct, but instructed 
the jury that evidence of her acts and conversation with the defendant, 
both before and after the commission of the alleged offence, was a proper 
subject for their consideration in determining the guilt or innocence of 
the defendant at the time of its commission. The defendant alleged 
exceptions. 

W. Allen, J. The court rightly refused to give the instructions 
requested. The injured party could not condone the crime by excusing 
or forgiving the criminal. 

1 See Reg. v. Burgess, 15 Cox C. C. 779. 

2 Only so much of the case as involves the question of condonation is printed. 



SECT. VI.] COMMONWEALTH V, KENNEDY. 229 

FLEENER v. STATE. 
Supreme Court op Arkansas. 1893. 

[Reported 58 Arh. 98.] 

BuNN, C. J.^ The defendant, A. W. Fleener, was indicted at the 
October term, 1892, of the St. Francis circuit court, for the crime of 
embezzlement ; at the March term, 1893, found guilty and sentenced to 
imprisonment in the penitentiary for the period of one year. Motions 
in arrest of judgment and also for a new trial were overruled, and 
appeal taken to this court. 

The fourth ground of the motion for a new trial is a novel one. The 
defendant contends that, having hired the guarantee company to make 
his bond for faithful performance of duty to the Pacific Express Com- 
pany, and that company having paid the express company for all losses 
claimed by it to have been suffered by reason of defendant's alleged 
embezzlement, therefore there was no crime committed ; that the 
express company had no longer any interest at stake, and even that 
the State has no interest in the matter. In this the defendant is 
mistaken. This is no longer a controvers}' between himself and 
the two companies, or either of them, and has not been since he fraud- 
ulently appropriated the money of the express companj', if indeed he 
did so appropriate it. It is now a controversy between the State of 
Arkansas and himself, which the State will not permit either one of the 
said companies to determine at present or in the future, nor will the 
State acknowledge the validity of any settlement of it, by any thing 
they both, or either of them, have done in the past. 



( 



COMMONWEALTH v. KENNEDY. 

Supreme Judicial Court of Massachusetts. 1894. 

[Reported 160 Mass. 312.] 

Complaint, charging the defendant with violating the provisions of 
Pub. Sts. c. 69, § 5, bj' boarding a ship without obtaining leave, as 
therein required. 

At the trial in the Superior Court, before Bond, J., there was evi- 
dence tending to show that the ship was unable to obtain a place at 
a wharf as desired, and was obliged to anchor in the harbor, that the 
captain was on board and in charge of the vessel, that the defendant 

1 Part of the opinion is omitted. — Ed. 



230 COMMONWEALTH V. KENNEDY. [CHAP. III. 

was not a pilot or public officer, and that he had no written leave from 
any owner or agent of the vessel to go on board. 

While the vessel was at anchor in the harbor, the defendant went on 
board, and, before doing any business, approached the captain and 
obtained permission from him to remain on board. The defendant con- 
tended, and asked the judge to rule, that, if the defendant boarded the 
vessel intending, before he engaged in any business on board, to obtain 
leave of the captain to remain, and he did obtain such leave before he 
engaged in any business on board, he was not guilty of any violation of 
the statute. 

The judge declined so to rule, and instructed the jury that the 
statute required a person to obtain leave of the master or person in 
charge of the vessel before going on board, and that it would be a vio- 
lation of the statute if the defendant boarded the vessel before it was 
made fast to the wharf without first obtaining leave of the master or 
person in charge. 

The jury returned a verdict of guilty ; and the defendant alleged 
exceptions. 

Morton, J. We think that the statute in question must be con- 
strued as if it read " without first having obtained leave from the 
master or person having charge of such vessel, or without first having 
obtained leave in writing from its owners or agents." Pub. Sts. c. 69, 
§ 5. The statute as originally enacted was intended according to its 
title " to protect mariners and shipowners from imposition " (St. 1867, 
c. 139), and in order to do that forbade without qualification the entry 
upon a vessel before it was made fast to the wharf of any person except 
a pilot or public officer, without having obtained leave from one of the 
persons named in the statute. The original statute was re-enacted, with 
slight changes in phraseology, in Gen. Sts. c. 52, §§ 22 to 29 inclu- 
sive, excepting § 26, which was a re-enactmeijt of St. 1859, c. 235, and 
the provisions of the General Statutes were incorporated into Pub. Sts. 
c. 69, §§ 5 to 12 inclusive, excepting § 7, which was a re-enactment of 
5t. 1874, c. 76. The offence with which the defendant is charged 
became complete upon his boarding the vessel without having obtained 
Ithe leave which the statute required, no matter what his motive was, 
[and without regard to the fact that permission was afterwards given 
I him by the captain to remain on board. Commonwealth r. Slattery, 
147 Mass. 423 ; Commonwealth v. Tobin, 108 Mass. 426. Cases may 
be supposed where the application of this rule would operate with 
harshness, but they do not justify us in departing from the words of 
the statute. Exceptions overruled. 



SECT. VI.] COMMONWEALTH V. ST. JOHN. 231 

COMMONWEALTH v. St. JOHN. 
Supreme Judicial Court of Massachusetts. 1899. 

[Reported 1 73 Mass. 566.] 

Indictment, against Joseph St. John, Albert St. Germaine, and 
Eugene Bernatchez, charging the first named defendant, on May 31, 
1896, at Springfield, with unlawfully using a certain instrument in and 
upon the body of a woman named, with intent to procure a miscarriage, 
and thereby causing her death ; and charging the other defendants with 
being accessories before the fact. 

St. Germaine, in support of his plea in bar, offered to show that he 
was promised and pledged by the city marshal of Springfield, who was 
at the time at the head of the police department of the city, and by one 
Boyle, the chief detective of the police department, and who were in 
the preliminary proceedings the prosecuting officers, and by whom a 
warrant was obtained for the arrest of St. Germaine, that if he would 
make full disclosure and confession of wbu,t he knew with reference to 
the abortion alleged to have been performed b\- St. John, and against 
whom a complaint had been made and a warrant issued from the police 
court of Springfield for such ofl'ence, as principal, and if St. Germaine 
would hold himself in readiness to testify and would testify at the pre- 
liminary hearing in the police court upon the complaint and warrant 
against St. John, and if he would hold himself in readiness to testif}' 
at any other trial or hearing with reference to the charge against St. 
John, he should have immunity and protection from the crime charged 
against him in the indictment. 

The judge ruled that the evidence offered was not competent, and 
excluded the same ; and each of the defendants alleged exceptions.^ 

Morton, J. The decisive question in each case is the same, and 
the cases may therefore properly be considered together. The question 
is whether the immunity that was promised to the defendants by the 
citj- marshal and by Boyle, the chief detective of the police depart- 
ment of Springfield, can be pleaded in bar of the indictment . against 
them. We think that it cannot. . The immunity and protection which 
maj- be promised from the consequences of crime on condition of a full 
disclosure and readiness to testify are not a matter of right, but rest in 
the last resort on the sound judicial discretion of the court having final 
jurisdiction to sentence, and cannot therefore be pleaded in bar. 
Wright «;. Eindskopf, 43 Wis. 344 ; State v. Moody, 69 N. C. 529; 
State V. Graham, 12 Vroom, 15 ; Rex v. Rudd, Cowp. 331 ; Whart. 
Crim. Ev. §§ 439, 443 ; 3 Buss. Crimes (9th Am. ed.), 599. 

When such promises are made by the public prosecutor or with his 
authority, the court will see that due regard is paid to them, and that 
the public faith which has been pledged by him is duly kept. The 

1 The statement of facts has been shortened. — Ed. 



232 IN EE LEWIS. [chap. III. 

prosecuting oBScer has also the power to enter a nolle prosequi. It ap- 
pears in each case that neither the city marshal nor Boyle had any 
authority from the District Attorney to make the promises or hold out 
the inducements which thej- did. There is notbing in either bill of ex- 
ceptions tending to show that the District Attornej- had anything to 
do with the prosecution in the police court. Neither of the defendants 
appeared before the grand jury, although they were at the court-house 
from day to day when the grand jury was in session, ready to testifj', 
relying on the promises of immunit}- made by the cit^- maishal and by 
Boyle. And there is nothing tending to show that there was any ex- 
pectation or understanding on the part of the District Attornej- that 
either was to testif}' as a government witness in the Superior Court, 
and neither did so testify. If an appeal had been made to the clem- 
ency of the court, it would no doubt have been competent for the court 
to take into consideration the inducements which had been held out 
and the promises tliat had been made, if any, by the city marshal and 
b}- Boyle. But what was done was to plead the promises and induce- 
ments in bar. A question of law was thus presented, and we think 
that the ruling of the court was clearly right. Exceptions overruled. 



In re LEWIS. 

Supreme Court of Kansas. 1903. 

[Reported 67 Kan. .562.] 

Mason, J.^ Oscar Lewis was arrested on a warrant issued April 2, 
1903, charging him with having, on June 1, 1902, obtained illicit con- 
nection, under promise of marriage, with Nellie Meador, she being of 
good repute and under twenty-one years of age. Upon a preliminary 
examination he was held to answer the charge. It was shown that on 
November 27, 1902, he was married to said Nellie Meador, and he now 
asks his discharge upon habeas corpus on the ground that such 
marriage is a complete bar to the prosecution. The state claims, and 
the claim is supported by the evidence, that tlie defendant abandoned 
his wife on the morning after the marriage, but this does not affect 
the legal aspect of the matter. 

In the following cases it has been held that a subsequent marriage 
is a bar to a prosecution for seduction : Commonwealth v. Eichar, 4 
Pa. L. J. Rep. 326 ; People v. Gould, 70 Mich. 240. 38 N. W. 232, 
14 Am. .St. Rep. 493; The State v. Otis, 135 Ind. 267, 24 N. E. 954, 
21 L. R. A. 733. The law is so stated in Wharton on Ciiminal 
Law, 10th edition, volume 2, page 1760, and Lawson's Criminal De- 
fences, volume 6, page 780. These statements of the text-writers, 
however, are based solely upon the cases just cited, and therefore 

1 Part of the opinion is omitted. — Ed. 



SECT. VI.] IN EE LEWIS. 233 

add little to their authority. The Michigan and Indiana cases, naore- 
over, merely followed the reasoning in Commonwealth v. Eichar, 
supra, so that the soundness of the doctrine in principle can be de- 
termined from an examination of the opinion in that case. Its full 
text upon this point is as follows : 

' ' The evidence fully establishes the fact that, six nolonths previous 
to the finding of this indictment b^' the grand jurj-, the defendant 
was legally married by the Rev. Mr. Rugan, of the Lutheran church, 
to the female whom he is charged with having seduced. She is by the 
laws of God and man his wife, and as such is entitled to all the rights 
which are incident to that relation. Can he now be convicted and 
punished for her seduction before marriage? It is not the carnal 
connection, even when induced by the solicitation of a man, that is the 
object of this st9,tutor3^ penalty, but it is the seduction under promise 
of marriage which is an offence of so grievous a nature as to require 
this exemplary punishment. What promise? One that is kept and 
performed? Clearly not, but a false promise, broken and violated 
after performing its fiendish purpose. The evil which led to the en- 
actment was not that females were seduced and then made the wives 
of the seducer, but that after the ends of the seducer were accom- 
plished his victim was abandoned to her disgrace. An objection to 
this construction is that it places within the pov^er of the seducer a' 
means of escaping the penalty. So be it. This is far better than 
bj- a contrary construction to remove the inducement to a faithful 
adherence to the promise which obtained the consent." 

Our attention has not been called to an^' actual adjudication against 
this doctrine, nor have we discovered any. However, in State v. Bierco, 
27 Conn. 319, 324, in considering the question whether it could be 
shown in defence that the promise of marriage was made in good faith, 
and broken only bj- reason of the subsequent misconduct of the 
complaining witness, the court said : 

" Even if he had performed his promise to marry her, we do not per- 
ceive how it could plausibly be urged that it would be any answer to 
the chaige of the previous seduction ; however, such partial repara- 
tion might he viewed as a circumstance to mitigate the punishment. 
As to the claim founded on the misconduct of the female subsequent 
to the illicit connection between her and the defendant, it is a sufficient 
answer that the offence was committed and complete before such 
misconduct took place, and that, whatever effect it might have upon a 
claim by her upon him for the V)reach of his promise of marriage, or 
however it might be considered by the court in affixing the punish- 
ment for the offence charged upon the defendant, it could not relate 
back to render legal or innocent a violation of the statute for which 
he had already become nmenahle." 

In State ?>. Wise, 32 Ore. 280, 282, 50 Pac. 800, it was said : 

" But, as we take itj the gravamen of tiie offence is the act of se- 
ducing and debauching an unmarried female, of previous chaste 



234 IN EE LEWIS. [chap. IH. 

cliavacter, under or by means of a promise of marriage ; and the 
crime is complete as soon as the act is accomplished, although a 
subsequent marriage is b^- statute a bar to a prosecution." 

In People v. Hough, 120 Cal. 558, 52 Pac. 846, 65 Am. St. Rep. 
201, the court held : 

" When a man induces an unmarried female of previous chaste 
character to submit her person to him by reason of a promise of mar- 
riage upon his part, the seduction has taken place — the crime has 
been committed. The succeeding section, which provides that the 
marriage is a bar to a prosecution, clearl}' recognizes that the crime has 
been committed when the promise has been made and the intercourse 
thereunder has taken place. There may be incidental references in 
some cases indicating that a refusal upon the part of the man to carrj' 
out the promise is a necessary element of the offence. (People v. 
Samonset, 97 Cal. 448, 32 Pac.'520; State v. Adams, 26 Ore. 172, 35 
Pac. 36, 22, L. E. A. 840, 42 Am. St. Rep. 790.) But such is not 
the fact." 

In Clark and Marshall's Law of Crimes, page 1122, the authors 
say: 

" By express provision of the statutes in most states, the subse- 
quent intermarriage of the parties is a bar to a prosecution for seduc- 
tipn. But this is not the case in the absence of such a provision, 
for, as was shown in another place, the person injured by a crime 
cannot prevent a prosecution by afterwards condoning the offence." 

Notwithstanding the authorities cited in support of the contention 
of defendant, we are not disposed to yield assent to it. Being based 
upon the Pennsylvania case, they depend for their force, as it does, 
upon the soundness of the reasoning by which it is supported, and 
this reasoning is based less upon the language of the statute than 
upon considerations of public policy, and the decision borders upon 
judicial legislation. 

While the following language of Mr. Justice Johnston in The State 
13. Newcomer, 59 Kan. 668, 54 Pac. 685, was used in a case of stat- 
utory rape, it is equalh' applicable here, and is a satisfactory- refu- 
tation of every argument advanced in the opinion in the Eichar 
case : 

"In behalf of the defendant it is ' argued that the evil conse- 
quences of the unlawful act have been averted by the marriage ; that 
when the parties to the act voluntarily, and in good faith, entered into 
the marriage relation the offence was condoned, and that the welfare 
of the parties and their offspring requires and the interest of the public 
will be best subserved bj' the ending of the prosecution. 

" The difficulty with this contention is that the law does not provide 
that the offence may be expiated by marriage or condoned by the 
injured female. Her consent to the sexual act constitutes no defence, 
and neither her forgiveness nor anything which either or both will do 
will take awaj- the criminal quality of the act or relieve the defendant 



SECT, vl] in ke lewis. 235 

Iroin the consequences of the same. The principle of condonation 
which obtains in divorce cases where civil rights are involved has no 
application in prosecutions brought at the instance of the state for the 
protection of the public and to punish a violation of the law. It is 
true, as stated, that societ3- approves the act of the defendant, when 
he endeavors to make amends for the wrong done the injured female, 
by marrying her, and usually a good-faith marriage between the parties 
to the wrong prevents or terminates a prosecution; but the statute, 
which defines the offence and declares punishment therefor makes no 
such provision. If the defendant has acted in good faith in marrying 
the girl, and honestly desires to perform the marital obligation resting 
upon him, and is prevented from doing so by the influence and inter- 
ference of persons other than his wife, it may constitute a strong 
appeal to the prosecution to discontinue the same, or to the governor 
for the exercise of executive clemency, but as the law stands it furnishes 
no defence to the charge brought against the defendant." 

Moreover, the doctrine of the Pennsylvania, Michigan and Indiana 
courts, if accepted as sound, would not necessarily control here, since 
it has arisen under statutes for the punishment of offences that include 
the element of seduction, properly so called, and the decisions support- 
ing it are based to some extent upon that fact. The Kansas statute 
here involved (Gen. Stat. 1901, § 2021) does not use the word 
" seduce," and, while the offence it creates is commonly and conven- 
iently called "seduction," this does not imply that the term is techni- 
cally correct. It makes criminal the act of obtaining illicit connection 
under promise of marriage with any female of good reputation under 
twenty-one years of age. This does not constitute seduction, as the 
word is used in the statutes of other states. 

We hold that a subsequent marriage to the injured female is not a 
liar to a prosecution under section 2021 of the General Statutes of 
1901. 



236 EEGINA V. TOLSON. [CHAP. IV; 



CHAPTER IV. 
CULPABILITY. 



SECTION I. 

What Crimes Require a Guilty Mind. 

EEGINA V. TOLSON. 
Crown Case Reserved. 1889. 

[Reported 23 Queen's Bench Division, 168.] 

Wills, J. In this case the prisoner was convicted of bigamy. She 

rrnirrWl ^ flppnnrl timn w^Hi iii k n yn ui'i j n f l.lip limpwlipn iSTiP last 

' knew of her husband being alive, but u pon information of his death, 
which the jury round that she upon reasonable grounds believed to be 
true. A few months after the second marriage he reappeared. 

The statute upon which the indictment was framed is the 24 & 25 
Vict. c. 100, s. 57, which is in these words : " Whoever, being mar- 
ried, shall marry any other person during the life of the former husband 
or wife shall be guilty of felony, punishable with penal servitude for 
not more than seven years, or imprisonment with or without hard- 
labor for not more than two years," with a proviso that " nothing in 
this Act shall extend to any person marrying a second time whose 
husband or wife shall have been continually absent from such person 
for the space of seven years last past, and shall not have been known 
by such person to be living within that time." 

I There is no doubt that under the circumstances the prisoner falls 

/within the very words of the statute. She, being married, married 

another person during the life of her former husband, and, when she 

did so, he had not been continually absent from her for the space of 

seven years last past. 

_TtJP) hnwpvr i 'inr l nnht f rlly n-pripniplR of En plish Criminal law , th at 

■ ordinarily s pp'''^'"g « '^■'i me is not committed if the mind of the person 
doing an act in qu estion be innocent ,. " It is a principle of natural 
justice and of our law, says Lord Kenyon, C. J., "that actus non 
facit reum, nisi mens sit rea. The intent and act must both concur to 



SECT. I.] EEGINA V. TOLSON. 237 

constitute the crime." Fowler v. Padget, 7 T. R. 509, 514. The 
guilty intent is not necessarily that of intending the very act or thing 
-done and prohibited by common or statute law, but it must at least be 
the intention to do something wrong. That intention may belong to 
one or other of two classes. It may be to do a thing wrong in itself 
and apart from positive law, or it may be to do a thing merely prohi- 
bited by statute or by common law, or both elements of intention may 
co-exist with respect to the same deed. There are many things prohi- 
bited by no statute — fornication or seduction for instance — which 
nevertheless no one would hesitate to call wrong ; and the intention to 
do an act wrong in this sense at the least must as a general rule exist 
before the act done can be considered a crime. Knowingly and inten- 
tionally to break a statute must, I think, from the judicial point of 
view, always be morally wrong in the absence of special circumstances 
applicable to the particular instance and excusing the breach of the 
law, as, for instance, if a municipal regulation be broken to save life 
or to put out a fire. But to make it morally right some such special 
matter of excuse must exist, inasmuch as the administration of jus- 
tice and, indeed, the foundations of civil society rest upon the prin- 
ciple that obedience to the law, whether it be a law approved of or 
disapproved of by the individual, is the iirst duty of a citizen. 

Although j)n'nia/ac?e and as a general rule there must be a mind at 
fault before there can be a crime, it is not an inflexible rule, and a 
statute may relate to such a subject-matter and may be so framed as] 
to make an act criminal whether there has been any intention to break j 
the law or otherwise to do wrong or not. There is a large body of | 
municipal law in the present day, which is so conceived. By-laws are 
constantly mad'e regulating the width of thoroughfares, the height of 
buildings, the thickness of walls, and a variety of other matters neces- 
sary for the general welfare, health, or convenience, and such by-laws 
are enforced by the sanction of penalties, and the breach of them con- 
stitutes an offence and is a criminal matter. In such cases it would, 
generally speaking, be no answer to proceedings for infringement of 
the by-law that the person committing it had bona fide made an acci- 
dental miscalculation or an erroneous measurement. The Acts are 
properly construed as imposing the penalty when the act is done, no 
matter how innocently, and in such a case the substance of the en- 
actment is that a man shall take care that the statutory direction is 
obeyed, and that if he fails to do so he does it at his peril. 

Whether an enactment is to be construed in this sense or with the 
qualification ordinarily imported into the construction of criminal stat- 
utes, that there must be a guilty mind, must, I think, depend upon 
the subject-matter of the enactment, and the various circumstances 
that may make the one construction or the other reasonable or unrea- 
sonable. There is no difference, for instance, in the kind of language 
used by Acts of Parliament which made the unauthorized possession 
of Government stores a crime, and the language used in by-laws which 



238 KEGINA V. TOLSOJSr. [CHAP. IV. 

say that if a man builds a house or a wall so as to encroach upon a 
space protected by the by-law from building he shall be liable to a 
penalty. Yet in Eeg. v. Sleep, L. & C 44 ; 30 L. J* M. C. 170, it 
was held that a person in possession of Government stores with the 
oroad arrow could not be convicted when there was not sufficient evi- 
dence to show that he knew they were so marked, while the mere 
infringement of a building by-law would entail liability to the penalty. 
There is no difference between the language by which it is said that a 
man shall sweep the snow from the pavement in front of his house 
before a given hour in the morning, and if he fail to do so, shall pay 
a penalty, and that by which it is said that a man sending vitriol by 
.railway shall mark the nature of the goods on the package on pain of 
: brf citing a sum of money ; and yet I suppose that in the first case 
■ jhe penalty would attach if the thing were not done, while in the other 
jase it has been held in Heme v. Garton, 2 E. & E. 66, that where the 
ijender had made reasonable inquiry and was tricked into the belief 
ihat the goods were of an innocent character, he could not be con- 
victed, although he had in fact sent the vitriol not properly marked. 
There is no difference between the language by which it is enacted 
that "whosoever shall unlawfully and wilfully kill any pigeon under 
ijuch circumstances as shall not amount to a larceny at common law " 
i^iall be liable to a penalty, and the language by which it is enacted 
that " if any person sliall commit any trespass by entering any land 
in the daytime in pursuit of game " he shall be liable to a penalty ; and 
lyet in the first case it has been held that his state of mind is material: 
JTaylor v. Newman, 4 B. & S. 89 ; in the second that it is immaterial : 
Watkins v. Major, L. E. 10 C. P. 662. So, again, there is no differ- 
ence in language between the enactments I have referred to in which 
the absence of a guilty mind was held to be a defence, and that of the 
statute which says that " any person who shall receive two or more 
lunatics " into any unlicensed house shall be guilty of a misdemeanor, 
under which the contrary has been held : Eeg. v. Bishop, 5 Q. B. D. 
259. A statute provided that any clerk to justices who should, under 
color and pretence of anything done by the justice or the clerk, receive 
a fee greater than that provided for by a certain table, should for 
every such offence forfeit £20. It was held that where a clerk to 
justices bona fide and reasonably but erroneously believed that there 
■were two sureties bound in a recognizance besides the principal, and 
accordingly took a fee as for three recognizances when he was only 
entitled to charge for two, no action would lie for the penalty. " Actus" 
says Lord Campbell, ^^ non facit reum, nisi mens sit rea. Here the 
defendant very reasonably believing that there were two sureties bound, 
beside the principal, has not, by making a charge in pursuance of his 
belief, incurred the forfeiture. The language of the statute is ' for 
every such offence.' If, therefore, the table allowed him to charge for 
three recognizances where there are a principal and two sureties, he 
has not committed an offence under the act." Bowman v. Blyth, 7 E. 
& B. 26, 43. 



SECT. I.] fiEGINA V. TOLSON. 239 

If identical language may thus be legitimately constraed in two 
opposite senses, and is sometimes held to imply that there is and some- 
times that there is not an offence when the guilty mind is absent, it is 
obvious that assistance must be sought aliunde, and that all circum- 
stances must be taken into consideration which tend to show that the 
one construction or the other is reasonable, and among such circum- 
stances it is impossible to discard the consequences. This is a con- 
sideration entitled to little weight if the words be incapable of more 
than one construction ; but I have, I think, abundantly shown that 
there is nothing in the mere form of words used in the enactment now 
under consideration to prevent the application of what is certainly the 
normal rule of construction in the case of a statute constituting an 
offence entailing severe and degrading punishment. If the words are 
not conclusive in themselves, the reasonableness or otherwise of the 
construction contended for has always been recognized as a matter 
fairly to be taken into account. In a case in which a woman was 
indicted under 9 & 10 Wm. III., c. 41, s. 2, for having in her posses- 
sion without a certificate from the proper authority Government stores 
marked in the manner described in the Act, it was argued that by the 
Act the possession of the certificate was made the sole excuse, 'and 
that as she had no certificate she must be convicted. Foster, J., said, 
however, that though the words of the statute seemed to exclude any 
other excuse, yet the circumstances must be taken into consideration, 
otherwise a law calculated for wise purposes might be made a hand- 
maid to oppression ; and directed the jury that if they thought the 
defendant came into possession of the stores without any fraud or 
misbehavior on her part they ought to acquit her. Foster's Crown 
Law, 3d ed. App. pp. 439, 440. This ruling was adopted by Lord 
Kenyon in Rex v. Banks, 1 Esp. 144, who considered it beyond ques- 
tion that the defendant might excuse himself by showing that he came 
innocently into such possession, and treated the unqualified words of 
the statute as merely shifting the burden of proof and making it neces- 
sary for the defendant to show matter of excuse, and to negative the 
guilty mind, instead of its being necessary for the crown to show the 
existence of the guilty mind. Prima facie the statute was satisfied 
when the case was brought within its terms, and it then lay upon the 
defendant to prove that the violation of the law which had taken 
place had been committed accidentally or innocentl)' so far as he was 
concerned. Suppose a man had taken up by mistake one of two 
baskets exactly alike and of similar weight, one of which contained 
innocent articles belonging to himself and the other marked " Govern- 
ment Stores," and was caught with the wrong basket in his hand. He 
would by his own act have brought himself within the very words of 
the statute. Who would think of convicting him? And yet what 
defence could there be except that his mind was innocent, and that he 
had not intended to do the thing forbidden by the statute? In Fowler 
V. Padget. 7 T. R. 509, the question was whether it was an act of 



240 EEGINA V. TOLSON. [CHAP. IV. 

bankruptcy for a man to depart from his dwelling-hoase, whereby his 
creditors were defeated and delayed, although he had no mtention of 
defeating and delaying them. The statute which constituted the act 
of bankruptcy was 1 Jac. I. c. 15, which makes it an act of bankruptcy 
(among other things) for a man to depart his dwellmg-house "to the 
intent or whereby his creditors may be defeated and delayed." The 
court of King's Bench, consisting of Lord Kenyon, C. J., and Ashurst 
and Grose, JJ., held that there was uo act of bankruptcy. " Bank- 
ruptcy," said Lord Kenyon, " is considered as a crime, and the bank- 
rupt in the old laws is called an offender ; but," he adds in the passage 
already cited, " it is a principle of natural justice and of our law that 
uctus non facit reum nisi mens sit rea ; " and the court went so far 
as to read " and" in the statute in place of " or," which is the word 
used in the Act, in order to avoid the consequences which appeared to 
them unjust and unreasonable. In Rex v. Banks, 1 Esp. 144, above 
cited. Lord Kenyon referred to Foster, J.'s, ruling in this case as that 
of " one of the best Crown lawyers that ever sat in Westminster Hall." 
These decisions of Foster, J., and Lord Kenyon have been repeatedly 
acted upon. See Reg. u. Willmett, 3 Cox C. C. 281 ; Reg. v. Cohen, 
S Cox C. C. 41 ; Reg. o. Sleep (in the Court for C. C. R.), L. & C. 
44 ; 30 L. J. N. C. 170 ; Reg. v. O'Brien, 15 L. T. (N. S.) 419. 

Now in the present instance one consequence of holding that the 
offence is complete if the husband or wife is de facto alive at the time 
of the second marriage, although the defendant had at the time of the 
second marriage every reason to believe the contrary, would be that 
though the evidence of death should be sufiBcient to induce the Court, 
of Probate to grant probate of the will or administration of the goods 
of the man supposed to be dead, or to prevail with the jury upon au 
action by the heir to recover possession of his real property, the wife 
of the person supposed to be dead who had married six years and 
eleven months after the last time she had known him to be alive would 
be guilty of felony in case he should turn up twenty years afterwards.^ 
It would be scarcely less unreasonable to enact that those who had in 
the meantime distributed his personal estate should be guilty of lar- 
ceny. It seems to me to be a case to which it would not be improper 
to apply the language of Lord Kenyon when dealing with a statute 
which literally interpreted led to what he considered an equally pre- 
posterous result : " I would adopt any construction of the statute that 
the words will bear in order to avoid such monstrous consequences." 
Fowler v. Padget, 7 T. R. 509, 514. 

Again, the nature and extent of the penalty attached to the offence 
may reasonably be considered. There is nothing that need shock any 
mind in the payment of a small pecuniary penalty by a person who 
has unwittingly done something detrimental to the public interest. To 
subject him, when what he has done has been nothing but what any 
well-disposed man would have been very likely to do under the cir- 
cumstances, to the forfeiture of all his goods and chattels, which 



SECT. I.] EEGINA V. TOLSON. '241 

would have been one consequence of a conviction at the date of the 
Act of 24 & 264 Vict., to tlie loss of civil rights, to imprisonment with 
hard labor, or even to penal servitude, is a very different ttiatter ; and 
such a fate seems properly reserved for those who have transgressed 
morally, as well as unintentionally done something prohibited by law. 
I am well aware that the mischiefs which may result from bigamous 
marriages, however innocently contracted, are great ; but I cannot 
thiak that the appropriate way of preventing them is to expose to the 
danger of a cruel injustice persons whose only error may be that of 
acting upon the same evidence as. has appeared perfectly satisfactory 
to a Court of Probate, a tribunal emphatically diflScult to satisfy in 
such matters, and certain only to act upon what appears to be the most 
cogent evidence of death. It is, as it seems to me, undesirable in the 
highest degree without necessity to multiply instances in which people 
shall be liable to conviction upon very grave charges, when the cir- 
cumstances are such that no judge in the kingdom would think of 
pronouncing more than a nominal sentence. 

It is said, however, in respect of the offence now under discussion, 
that the proviso in 24 & 25 Vict. c. 100, s. 57, that " nothing in the sec- 
tion shall extend to any person marrying a second time whose husband, 
or wife shall have been continually absent from such person for seven 
years last past, and shall not have been known by such person to be 
living within that time," points out the sole excuse of which the Act 
allows. I cannot see what necessity there is for drawing any such 
inference. It seems to me that it merely specifies one particular case, 
and indicates what in that ease shall be sufficient to exempt the party, 
without any further inquiry, from criminal liability ; and I think it is an 
argument of considerable weight in this connection, that under 9 & 10 
Wm. III. c. 41, s. 2, where a similar contention was founded upon the 
specification of one particular circumstance under which the possession 
of Government stores should be justified, successive judges and courts 
have refused to accede to the reasoning, and have treated it, to use 
the words of Lord Kenyon, as a matter that " could not bear a ques- 
tion," that the defendant might show in other ways that his posses- 
sion was without fraud or misbehavior on his part. Rex v. Banks, 
1 Esp. 144, 147. 

Upon the point in question there are conflicting decisions.' There 
is nothing, therefore, in the state of the authorities directly bearing 
upon the question to prevent one from deciding it upon the grounds of 
principle. It is suggested, however, that the important decision of the 
court of fifteen judges in Reg. v. Prince, L. R. 2 C. C. 164, is an 
authority in favor of a conviction in this case. I do not think so. In 
Reg. V. Prince the prisoner was indicted under 24 & 25 Vict. c. 100, 

1 The learned judge here examined the following conflicting decisions: Keg. '• 
Turner, 9 Cox C. C. 145; Eeg. 0. Horton, 11 Co;: C. C. 670; Beg. v. Gibbons, 12 
Cox C. C. 237; Reg. v. Bennett, 14 Cox C. C. 45; Reg. ,>. Moore, 13 Cox C. C, 
644. — Kd. 



242 ' EEGINA V. TOLSON. [CHAP. IV. 

s. 55, for " unlawfully taking an unmarried girl, then being under the 
age of sixteen years, out of the possession and again^ the will of her 
father." The jury found that the prisoner bona fide believed upon 
reasonable grounds that she was eighteen. The court (dissentiente 
Brett, J.,) upheld the conviction. Two judgments were delivered by 
a majority of the court, in each of which several judges concurred, 
whilst three of them, Denman, J., Polloclf, B., and Quain, J., concurred 
in both. The first of the two, being the judgment of nine judges, 
upheld the conviction upon the ground that, looking to the subject- 
matter of the enactment, to the group of sections amongst which it is 
found, and to the history of legislation on the subject, the intention 
of the legislature was that if a man took an unmarried girl under six- 
teen out of the possession of her father against his will, he must take 
his chance of whether any belief he might have about her age was 
right or wrong, and if he made a mistake upon this point so much 
the worse for him, — he must bear the consequences. The second 
of the two judgments, being that of seven judges, gives a number of 
other reasons for arriving at the same conclusion, some of them 
founded upon the policy of the legislature as illustrated by other asso- 
ciated sections of the same Act. This judgment contains an emphatic 
recognition of the doctrine of the "guilty mind," as an element, in gen- 
eral, of a criminal act, and supports the conviction upon the ground 
that the defendant, who believed the girl to be eighteen and not six- 
teen, even then, in taking her out of the possession of the father against 
his will was doing an act wrong in itself. " This opinion," says the 
judgment, " gives full scope to the doctrine of the mens, rea." ^ 

The case of Reg. v. Prince, therefore, is a direct and cogent author- 
ity for saying that th e intention o f the legislatuce-eaftBOtTbe decTclEti-- 
upon simple prnhi hi tory words, witliout reference to other consid^ ra- 
/<L1011B. — The considerations relied upon in that case' are wanting in the 
~~TTr»eent case, whilst, as it seems to me, those which point to the appli- 
cation of the principle underlying, a vast area of criminal enactment, 
that there can be no crime without a tainted mind, preponderate greatly 
over any that point to its exclusion. 

1 "To my mind, it is contrary to the whole established law of England (unless the 
legislation on the subject has clearly enacted it), to say that a person can be guilty of a 
Crime in England without a wrongful intent, — without an attempt to do that which 
the law has forbidden. I am aware that in -i particular case, and under a particular 
criminal statute,' fifteen judges to one held that a person whom the jury found to have 
no intent to do what was forbidden, and whom the jury found to have been deceived, 
and to have understood the facts to be such that he might with impunity have done a 
certain thing, was by the terms of that Act of Parliament guilty of a crime, and could 
be imprisoned. I say still, as I said then, that I cannot subscribe to the propriety of 
that decision. I bow to it, but I cannot subscribe to it; but the majority of the judges 
forming the court so heldi because they said that the enactment was absolutely clear. " 
Brett, M. R., in Attorney General v. Bradlaugh, 14 Q. B. D. 667, 689. 

" Actios noil facit reum, nisi mens sit rea is the foundation of all criminal justice." 
CocKBURN, C. J., in Reg. «. Sleep, 8 Cox C. V. 472, 477. — Ed. 



SECT. I.J EBGINA V. TOLSON. 243 

In my opinion, therefore, this conviction ought to be quashed.* 
Stephen, J. I am of opinion that the conviction should be quashed. 
My view of the subject is based upon a particular application of the 
doctrine usually, though I think not happily, described by the phrase 
"mom est'reus, nisi mens sit rea." Though this phrase is in common 
use, I think it most unfortunate, and not only likely to mislead, but 
actually misleading, on the following grounds : It naturally suggests 
that, apart from all particular definitions of crimes, such a thing exists 
as a me7is rea, or " guilty mind," which is always expressly or by 
implication involved in every definition. This is obviously not the case, 
for the mental elements of different crimes differ widely. Mens rea 
means, in the case of murder, malice aforethought ; in the case of theft, 
an intention to steal ; in the case of rape, an intention to have forcible 
connection with a woman without her consent ; and in the case of 
receiving stolen goods, knowledge that the goods were stolen. In some 
eases it denotes mere inattention. For instance, in the case of man- 
slaughter by negligence, it may mean forgetting to notice a signal. It 
appears confusing to call so many dissimilar states of mind by one 
name. It seems contradictory indeed to describe a mere absence of 
mind as a "mens rea," or "guilty mind." The expression, again, is 
likely to and often does mislead. To an unlegal mind it suggests that 
by the law of England no act is a crime which is done from laudable 
motives ; in other words, that immorality is essential to crime. It will, 
I think, be found that much of the discussion of the law of libel in 
Shipley's Case, 4 Doug. 73 ; 21 St. Tr. 847, proceeds upon a more or 
less distinct belief to this effect. It is a topic frequently insisted upon 
in reference to political offences, and it was urged in a recent notorious 
case of abduction, in which it was contended that motives said to be 
laudable were an excuse for the abduction of a child from its parents. 
Like most legal Latin maxims, the maxim on mens rea appears to me 
to be too short and antithetical to be of much practical value. It is, 
ind«ed, more like the title of a treatise than a practical rule. I have 
tried to ascertain its origin, but have not succeeded in doing so. It is 
not- one of the '■'■regulce juris" in the digests. The earliest case of its 
use which I have found is in the " Leges Henrici Primi," v. 28, in 
which it is said: '■'■Si quia per coactio'nem abjurare cogatur quod per 
multos annos quiete tenuerit non in jurante set cogente perjurium erit. 
JReum non facit nisi mens rea." In Broom's Maxims the earliest 
authority cited tor its use is 3d Institute, ch. i. fol. 10. In this place 
it is contained in a marginal note, which says that when it was found 
that some of Sir John Oldcastle's adherents took part in an insurrection 
'■^pro timore mortis el quod, recesserunt quam cito potuerunt," the judges 
held that this was to be adjudged no treason, because it was for fear 
of death. Coke adds : "JSi actus non facit reum nisi mens sit rea." 

' Concurring opinions of Cave and Hawkins, JJ., and Lord Coleridge, C. J., are 
omitted. Charles, Day, A. L. Smith, and Grantham, JJ., concui-red. Part of the 
opinion of Stephen, J., is omitted. — Ed. 



244 KEGINA V. TOLSON. [CHAP. IV. 

This is only Coke's own remark, and not part of the judgment. Now 
Coke's scraps of Latin in this and the following chapters are some- 
times contradictory. Notwithstanding the passage just quoted, he 
says in the margin of his remarks on opinions delivered in Parliament 
by Thyrning and others in the 21 R. 2 : ^^ Melius est omnia mala pati 
quam malo consentire " (22-23) , which would show that Sir J. Oldcas- 
tle's associates had a mens rea, or guilty mind, though they were 
threatened with death, and thus contradicts the passage first quoted. 

It is singular that in each of these instances the maxim should be 
used in connection with the law relating to coercion. 

The principle involved appears to me, when fully considered, to 
amount to no more than this : The full definition of every crime con- 
tains, expressly or by implication, a proposition as to a state of mind. 
Therefore, if the mental element of any conduct alleged to be a crime 
is proved to have been absent in any given case, the crime so defined 
is not committed ; or, again, if a crime is fully defined, nothing amounts 
to that crime which does not satisfy that definition. Crimes are in the 
present day much more accurately defined by statute or otherwise than 
they formerly were. The mental element of most crimes is marked 
by one of the words "maliciously," "fraudulently," "negligently," or 
" knowingly," but it is the general — I might, I think, say, the inva- 
riable — practice of the legislature to leave unexpressed some of the 
mental elements of crime. In all cases wliatever, competent age, 
sanity, and some degree of freedom from some kinds of coercion are 
assumed to be essential to criminality, but I do not believe they are 
ever introduced into any statute by which any particular crime is 
defined. 

The meanings of the words "malice," "negligence," and "fraud," 
in relation to particular crimes has been ascertained by numerous cases. 
Malice means one thing in relation to murder, another in relation to 
the Malicious Mischief Act, and a third in relation to libel, and so of 
fraud and negligence. 

With regard to knowledge of fact, the law, perhaps, is not quite so 
clear, but it may, I think, be maintained that in every case knowledge 
of fact is to some extent an element of criminality as much as compe- 
tent age and sanity. To take an extreme illustration, can any one 
doubt that a man who, though he might be perfectly sane, committed 
what would otherwise be a crime in a state of somnambulism, would 
be entitled to be acquitted? And why is this? Simply because he 
would not know what he was doing. A multitude of illustrations of 
the same sort might be given. 1 will mention one or two glaring ones. 
Levet's Case, 1 Hale, 474, decides that a man who, making a thrust 
with a sword at a place where, upon reasonable grounds, he supposed 
a burglar to be, killed a person who was not a burglar, was held not 
to be a felon, though he might be (it was not decided that he was) 
guilty of killing per mfortunium, or possibly, se defendendo, which 
then involved certain forfeitures. In other words, he was in the same 



SECT. I.] EEGINA V. TOLSON. 245 

situation as far as regarded the homioide as if he had killed a burglar, 
In the decision of the judges in McNaghten's Case, 10 CI. & F. 200, 
it is stated that if, under an insane delusion, one man killed another, 
and if the delusion was such that it would, if true, justify or excuse 
the killing, the homicide would be justified or excused. This could 
hardly be if the same were not law as to a sane mistake. A bo7ia fide 
claim of right excuses larceny, and many of the offences against the 
Malicious Mischief Act. Apart, indeed, from the present case, I think 
it may be laid down as a general rule that an alleged offender is deemed 
to have acted under that state;of facts which he in good faith and on 
reasonable grounds believed to exist when he did the act alleged to be 
an offence. 

I am unable to suggest any real exception to this rule, nor has one 
ever been suggested to me. A very learned person suggested to me 
the following case : A constable, reasonably believing a man to have 
committed murder, is justified in killing him to prevent his escape, but 
if he had not been a constable he would not have been so justified, but 
would have been guilty of manslaughter. This is quite true, but the 
mistake in the second case would be not only a mistake of fact, but a 
mistake of law on the part of the homicide in supposing that he, a 
private person, was justified in using as much violence as a public offi- 
cer, whose duty is to arrest, if possible, a person reasonably suspected 
of murder. The supposed homicide would be in the same position as 
if his mistake of fact had been true ; that is, he would be guilty, not 
of murder, but of manslaughter. I think, therefore, that the cases 
reserved fall under the general rule as to mistakes of fact, and that 
the conviction ought to be quashed. 

I will now proceed to deal with the arguments which are supposed 
to lead to the opposite result. 

It is said, first, that the words of 24 & 25 Vict. c. 100, s. 57, are 
absolute, and that the exceptions which that section contains are the 
only ones which are intended to be admitted ; and this, it is said, is 
confirmed by the express proviso in the section, — an indication which 
is thought to negative any tacit exception. It is also supposed that 
the case of Reg. v. Prince, L. R. 2 C. C. 154, decided on s. 55, con- 
firms this view. I will begin by saying how far I agree with these 
views. First, I agree that the ease turns exclusively upon the con- 
struction of s. 57 of 24 & 25 Vict. c. 100. Much was said to us in 
argument on the old statute, 1 Jac. I. c. 11. T cannot see what this 
has to do with the matter. Of course, it would be competent to the 
' legislature to define a crime in such a way as to make the existence of 
any state of mind immaterial. The question is solely whether it has 
actually done so in this case. 

In the first place I will observe upon the absolute character of the 
section. It appears to me to resemble most of the enactments con- 
tained in the Consolidation Acts of 1861, in passing over the general 
mental elements of crime which are presupposed in every case. Age, 



246 EEGINA V. TOLSON. [CHAP. IV. 

sanity, and more or less freedom from compulsion, are always pre- 
sumed, and I think it would be impossible to quote any sttitute which 
in any case specifies these elements of criminality in the definition of 
any crime. It will be found that either by using the words " wilfully 
and maliciously," or by specifying some special intent as an element 
of particular crimes, knowledge of fact is implicitly made part of the 
statutory definition of most modern definitions of crimes ; but there are 
some cases in which this cannot be said. Such are : s. 55, on which 
Reg. V. Prince, L. E. 2 C. C. 154, was decided ; s. 56, which punishes 
the stealing of "any child under the age of fourteen years ;" s. 49, as 
to procuring the defilement of any " woman or girl under the age of 
twenty-one," — in each of which the same question might arise as in 
Eeg. V. Prince, L. R. 2 C. C. 154 ; to these I may add some of the pro- 
visions of the Criminal Law Amendment Act of 1885. Reasonable 
belief that a girl is sixteen or upwards is a defence to the charge of 
an offence under ss. 5, 6, and 7, but this is not provided for as to an 
offence against s. 4, which is meant to protect girls under thirteen. 

It seems to me that as to the construction of all these sections the 
case of Reg. v. Prince is a direct authority. It was the case of a man 
who abducted a girl under sixteen, believing on good grounds that 
she was above that age. Lord Esher, then Brett, J., was against 
the conviction. His judgment establishes at much length, and, as it 
appears to me, unanswerably, the principle above explained, which he 
states as follows : "That a mistake of facts on reasonable grounds, to 
the extent that, if the facts were as believed, the acts of the prisoner 
would make him guilty of no offence at all, is an excuse, and that 
such an excuse is implied in every criminal charge and every criminal 
enactment in England." 

Lord Blackburn, with whom nine other judges agreed, and Lord 
Bramwell, with whom seven others agreed, do not appear to me to 
have dissented from this principle, speaking generally ; but they held 
that it did not apply fully to each part of every section to which I have 
referred. Some of the prohibited acts they thought the legislature 
intended to be done at the peril of the person who did them, but not 
all. 

The judgment delivered by Lord Blackburn proceeds upon the prin- 
ciple that the intention of the legislature in s. 55 was "to punish the 
abduction unless the girl was of such an age as to make her consent 
an excuse." 

Lord Bramwell's judgment proceeds upon this principle : " The legis- 
lature has enacted that if any one does this wrong act he does it at 
the risk of her turning out to be under sixteen. This opinion gives 
full scope to the doctrine of the mens rea. If the taker believed he 
had her father's consent, though wrongly, he would have no mens rea; 
BO if he did not know she was in any one's possession nor in the care 
or charge of any one. In those cases he would not know he was doing 
the act forbidden by the statute." 



SECT. I.J EEGINA V. TOLSON. 247 

All the judges, therefore, in Reg. v. Prince agreed on the general 
principle, though they all, except Lord Esher, considered that the 
object of the legislature being to prevent a scandalous and wicked 
invasion of parental rights (whether it was to be regarded as illegal 
apart from the statute or not) it was tp be supposed that they intended 
that the wrong-doer should act at his peril. 

As another illustration of the same principle, I may refer to Reg. v. 
Bishop, 5 Q. B. D. 259. The defendant in that case was tried before 
me for receiving more than two lunatics into a house not duly licensed, 
upon an indictment on 8 and 9 Vict. c. 100, s. 44. It was proved that 
the defendant did receive more than two persons, whom the jury found 
to be lunatics, into her house, believing honestly, and on reasonable 
grounds, that they were not lunatics. I held that this was immaterial, 
having regard to the scope of the Act, and the object for which it was 
apparently passed, and this court upheld that ruling.' 

The application of this to the present case appears to me to be as 
follows : The general principle is clearly in favor of the prisoner, but 
how does the intention of the legislature appear to have been against 
her? It could not be the object of parliament to treat the marriage of 
widows as an act to be if possible prevented as presumably immoral. 
The conduct of the woman convicted was not in the smallest degree 
immoral ; it was perfectly natural and legitimate. Assuming the facts 
to be as she supposed, the infliction of more than a nominal punishment 
on her would have been a scandal. Why, then, should the legislature 
be held to have wished to subject her to punishment at all? 

If such a punishment is legal, the following among many other 
cases might occur: A number of men in a mine are killed, and their 
bodies are disfigured and mutilated, by an explosion. One of the sur- 
vivors secretly absconds, and it is supposed that one of the disfigured 
bodies is his. His wife sees his supposed remains buried ; she marries 
again. I cannot believe that it can have been the intention of the legis- 
lature to make such a woman a criminal ; the contracting of an invalid 
marriage is quite misfortune enough. It appears to me that every 
argument which showed, in the opinion of the judges in Reg. v. Prince, 
L. R. 2 C. C. 154, that the legislature meant seducers and abductors to 
act at their peril, shows that the legislature did not mean to hamper 
what is not only intended, but naturally and reasonably supposed by 
the parties to be a valid and honorable marriage, with a liability to 
seven years' penal servitude. 

It is argued that the proviso that a re-marriage after seven years' 
separation shall not be punishable operates as a tacit exclusion of all 
other exceptions to the penal part of the section. It appears to me 
that it only supplies a rule of evidence which is useful in many cases 

1 " I am not aware of any other way in which it is. possible to determine whether 
the word ' knowingly ' is or is not to he implied in the definition of a crime in which it 
is not expressed." 2 Stephen Hist. Cr. L. 117. 



248 EEGINA V. TOLSON. [CHAP. IV. 

in the absence of explicit proof of death. But it seems to me to show, 
not that belief in the death of one married person excuses the ibarriage 
of the other only after seven years' separation, but that mere separation 
for that period has the effect which reasonable belief of death caused 
by other evidence would have at any time. It would to my mind be 
monstrous to say that seven years' separation should have a greater 
effect in excusing a bigamous marriage than positive evidence of death, 
sufHcient for the purpose of recovering a policy of assurance or obtain- 
ing probate of a will, would have, as in the case I have put, or in others , 
which might be even stronger. 

Manisty, J. I am of opinion that the conviction should be affirmed. 

The question is whether if a married woman marries another man 
during the life of her former husband, and within seven years of his 
leaving her, she is guilty of felon}-, the jurj' having found as a fact that 
she had reason to believe, and did honestlj- believe, that her former 
husband was dead. 

The 57th section of the 24 & 25 Vict. c. 100 is as express and as 
free from ambiguit}' as words can make it. The statute says : " Who- 
soever being married shall marry an}* .other person during the life of 
the former husband or wife . . . shall be guilt}- of felony, and being 
convicted shall be liable, at the discretion of the court, to be kept in 
penal servitude for any term not exceeding seven years, and not less 
than three years, or to be imprisoned for any term not exceeding two 
years, with or without hard labor." The statute does not even say if 
the accused shall feloniously or unlawfully or knowingly commit the 
act he or she shall be guilty of felony, but the enactment is couched in 
the clearest language that could be used to prohibit the act, and to 
make it a felony if the act is committed. 

If any doubt could be entertained on the point, it seems to me the 
proviso which follows the enactment ought to remove it. The proviso 
is, that "Nothing in the 57th section of the Act shall extend to any 
person marrying a second time whose husband or wife shall have been 
continually absent from such person for the space of seven years then 
last past, and shall not have been known by such person to be living 
within that time." 

Such being the plain language of the Act, it is, in my opinion, the 
imperative duty of the court to give effect to it, and to leave it to the 
legislature to alter the law if it thinks it ought to be altered. 

Probably if the law was altered some provision would be made in 
favor of children of the second marriage. If the second marriage is to 
be deemed to be legal for one purpose, surely it ought to be deemed 
legal as to the children who are the offspring of it. If it be within the 
province of the court to consider the reasons which induced the legis- 
lature to pass the Act as it is, it seems to me one principal reason is 
on the surface, namely, the consequence of a married person raai-i-ying 
again in the lifetime of his or her former wife or husband, in which 
case it might, and in many cases would be, that several children of the 



SECT. I.] EEGIXA V. TOLSON. 249 

second marriage would be born, and all would be bastards. The pro- 
viso is evidently founded upon tlie assumption that after the lapse of 
seven years, and the former husband or wife not being heard of, it may 
reasonably be inferred that he or she is dead, and thus the mischief of 
a second marriage in the lifetime of the former husband or wife is to a 
great extent, if not altogether, avoided. 

It is to be borne in mind that bigamy never was a crime at common 
law. It has been the subject of several Acts of Parliament, and is now 
governed by 24 & 25 Vict. c. 100, s. 57. 

No doubt in construing a statute the intention of the legislature is 
what the court has to ascertain ; but the intention must be collected 
from the language used ; and where that language is plain and explicit, 
and free from all ambiguity, as it is in the present case, I have always 
understood that it is the imperative dutj' of judges to give effect to it. 

The cases of insanity, etc., on which reliance is placed stand on a 
totally different principle, namely, that of an absence of mens. Igno- 
rance of the law is no excuse for the violation of it ; and if a person 
choose to run the risli of committing a felony, he or she must take the 
consequences if it turn out that a felony has been committed. 

Great stress is laid by those who hold that tlie conviction should be 
quashed upon the circumstance that the crime of bigamy is by the 
statute declared to be a felony, and punishable with penal servitude 
or imprisonment, with or without hard labor, for any term not exceed- 
ing two years. If the crime had been declared to be a misdemeanor 
punishable with fine or imprisonment, surely the construction of the 
statute would have been, or ought to have been, the same. It may 
well be that the legislature declared it to be a felony to deter married 
persons from running the risk of committing the crime of bigamj-, and 
in order that a severe punishment might be inflicted in cases where 
there were no mitigating circumstances. No doubt circumstances may 
and do affect the sentence, even to the extent of the punishment being 
nominal, as it was in the present case ; but that is a very different thing 
from disregarding and contravening the plain words of the Act M 
Parliament. 

The case is put by some of my learned brothers of a married man 
leaving his wife and going into a foreign country intending to settle 
there, and, it may be, afterwards to send for his wife and children, and 
the ship in which he goes is lost in a storm, with, as is supposed, all on 
board ; and after the lapse of say a year, and no tidings received of any 
one having been saved, the underwriters pay the insurance on the ship, 
and the supposed widow gets probate of her husband's will, and mar- 
ries and has children, and after the lapse of several years the husband 
appears, it ma}' be a few da3-s liefore seven j-ears have expired ; and 
the question is asked, would it not be shocking that in such a case the 
wife could be found guilty of bigamy? 

My answer is, that the Act of Parliament says in clear and express 
words, for very good reasons, as I have alreadj' pointed out, that slie 



250 EEGINA V. TOLSON. [CHAP. IV. 

is guilt}- of bigamj'. The onlj- shocljing fact would be that some one, 
for some purpose of his own, had instituted the prosecution. I need 
not say that no public prosecutor would ever think of doing so, and the 
judge before whom the case came on for trial would, as my brother 
Stephen did in the present case, pass a nominal sentence of a day's 
imprisonment (which in effect is immediate discharge), accompanied, 
if I were the judge, with a disallowance of the costs of the prosecution. 
It may be said, but the woman is put to some trouble and expense in 
appearing before the magistrate (who would, of course, take nominal 
bail) and in appearing to take her trial. Be it so, but such a case 
would be ver}' rare indeed. On the other hand, see what a door would 
be opened to collusion and mischief if, in the vast number of cases 
where men in humble life leave their wives and go abroad, it would be 
a good defence for a woman to say and give proof, which the jurj- 
believed, that she had been informed bj- some person upon whom she 
honestly thought she had reason to rely, and did believe, that her hus- 
band was dead, whereas in fact she had been imposed upon, and her 
husband was alive. 

What operates strongly on my mind is this, that if the legislature 
intended to prohibit a second marriage in the lifetime of a former hus- 
band or wife, and to make it a crime, subject to the proviso as to seven 
years, I do not believe that language more apt or precise could be found 
to give effect to that intention than the language contained in the 57tli 
section of the Act in question. In this view I am fortified by several 
sections of the same Act, where the words " unlawfullj- " and "mali- 
ciously and unlawfully" are used (as in s. 23), and bj- a comparison 
of them with the section in question (s. 57), where no such words are 
to be found. I especially rely upon the 55th section, by which it is 
enacted that " whosoever shall unlawfully" (a word not used in s. 57) 
" take or cause to be taken an}- unmarried girl being under the age of 
sixteen years out of the possession of her father or mother, or any 
other person having the lawful care or charge of her, shall be guilty of 
a misdemeanor." Fifteen out of sixteen judges held, in the case of 
Reg. V. Prince, L. R. 2 C. C. 154, that, notwithstanding the use of the 
word " unlawfully," the fact of the prisoner believing and having 
reason to believe that the girl was over sixteen afforded no defence. 
This decision is approved of upon the present occasion by five judges, 
making in all twenty against the nine who are in favor of quashing the 
conviction. To the twenty I may, I think, fairly add Tindal, C J , 
in Reg. v. Robins, 1 C. & K. 456, and Willes, J., in Reg. v. Mycock, 
12 Cox C. C. 28. 

I rely also very much upon the 5th section of the Act passed in 1885 
for the better protection of women and girls (48 & 49 Vict. c. 69), bv 
which it was enacted that " any person who unlawfully and carnally 
linows any girl above thirteen and under sixteen years shall be guilty 
of a misdemeanor ; " but to that is added a proviso that " it shall he a 
sufficient defence if it be made to appear to the court or jurv before 



SECT. I.] EEGIiXA V. TOLSON. 251 

whom the charge shall be brought that the person charged had reason- 
able cause to believe, and did believe, that the girl was of or abov(! 
the age of sixteen." It is tO' be observed that notwithstanding the 
word " unlawfully" appears in this section it was considered necessary 
to add the proviso, without which it would have been no defence that 
the accused had reasonable cause to believe, and did believe, that the 
girl was of or above the age of sixteen. Those who hold that the con- 
viction in the present case should be quashed really import into the 
57th section of the 24 & 25 Vict. c. 100, the proviso which is in the 
5th section of the 48 & 49 Vict. c. 69, contrary, as it seems to me, to 
the decision in Eeg. v. Prince, and to the hitherto undisputed canons 
•for construing a statute. 

It is said that an indictment for the offence of bigamy commences by 
stating that the accused feloniously married, etc., and consequently the 
principle of mens rea is applicable. To this I answer that it is to the 
language of the Act of Parliament, and not to that of the indictment, 
the court has to look. I consider the indictment would be perfectly 
good if it stated that the accused, being married, married again in the 
lifetime of hjs or her wife or husband, contrary to the statute, and so 
was guilty of felony. 

I am very sorry we had not the advantage of having the case argued 
bj' counsel on behalf of the Crown. My reason for abstaining from 
commenting upon the cases cited by Mr. Henry in his very able argu- 
ment for the prisoner is because the difference of opinion among some 
of the judges in those cases is as nothing compared with the solemn 
-decision of fifteen out of sixteen judges in the case of Eeg. v. Prince. 
So far as I am aware, in none of tlie cases cited by my learned brothers 
was the Interest of third parties, such as the fact of there being children 
of the second marriage, involved. I have listened with attention to 
the judgments which have been delivered, and I have not heard a single' 
observation with reference to this, to my mind, important and essential 
point. I am absolutelj' unable to distinguish Reg. v. Prince from the 
present case, and, looking to the names of the eminent judges who 
■constituted the majority, and to the reasons given in their judgments, 
I am of opinion, upon authority as well as principle, that the conviction 
should be affirmed. 

The only observation which I wish to make is (speaking for myself 
only) that I agree with my learned brother Stephen in thinking that 
the phrases " mens rea " and " non est reus nisi mens sit rea " are not 
of much practical value, and are not only " likely to mislead," but are 
" absolutely misleading." Whether thej' have had that effect in the 
present case on the one side or the other it is not for me to say. 

I think the conviction should be affirmed. My brothers Denman, 
Pollock, Field, and Hdddleston agree with this judgment. 

Conviction quashed 



252 EEGINA V. STEPHENS. [CHAP. IV. 



REGINA V. STEPHENS, 
Queen's Bench. 1866. 
[Repot-ted L. R. 1 Q. B. 702.] 

Indictment. First count for obstructing tlie navigation of a public 
river called the Tivy by casting and throwing, and causing to be cast 
and thrown, slate stone and rubbish in and upon the soil and bed of 
the river, and thereby raising and producing great mounds projecting 
and extending along the stream and waterway of the river. 

Second count that the defendant was the owner of large quantities 
of slate quarried from certain slate quarries near the river Tivj', and 
that he unlawfullj' ICept, permitted, and suffered to be and remain large 
quaniities of slate sunk in the river, so that the navigation of the river 
was obstructed. 

Plea, not guilty. 

The indictment was tried before Blackburn, J., at the last spring 
assizes for Pembrokeshire, when the following facts were proved : — 
The Tivy is a public navigable river which flows through Llechryd 
Bridge, thence bj' Kilgerran Castle, and from thence past the town of 
Cardigan to the sea. About twenty jears ago the Tivy was navigable 
to within a quarter of a mile of Llechryd Bridge, from which place a 
considerable traffic was carried on in limestone and culm by means of 
lightei-s. 

The defendant is the owner of a slate quarry called the Castle Quarry, 
situate near the Castle of Kilgerran, which he has extensively worked 
since 1842. The defendant had no spoil bank at the quarry. The 
rubbish from the quarrj' was stacked about Ave or six j-ards from 
the edge of the river. Previous to 1847, the defendant erected a wall 
to prevent it from falling into the river, but in that year a h eavy flbo d 
Lcarried awav thft wall, nnd with it Jarge quantities of the rubbish . 
Quantities of additional rubbish were from time to time shot by the 
defendant's workmen on the same spot, and so slid into the river. B3- 
these means the navigation was obstructed, so that even small boats 
were prevented from coming up to Llechryd Bridge. 

The defendant being upwards of eighty years of age was unable per- 
sonallj' to superintend the working of the quarry, which was managed 
for his benefit by his sons. The defendant's counsel was prepared to 
offer evidence that the workmen at the quarry had been prohibited both 
by the defendant and his sons from thus depositing the rubbish ; and 
that they had been told to place the rubbish in the old excavations 
and in a place provided for that purpose. The learned judge intimate d 

"tEe" 



SECT. I.] EEGINA V. STEPHENS. 253 

to prevent_lbfi_iubbiuli fiuiu ftilliiig into tne river, and tliai if a sub- 
"stantia l part of the rubbish went into the river from having been im- . 
pfgperly stac ked so near the river as to fall into it. thf ftpfRV"^""'' ^°° 
■wtjtitysniaving caused a nuisance, although the acts might have been 
— 6e«Maattted"~b,y his w orkmen, without his TiiiowlMge ~and against his 
uoneml-wdfrrsr^ i'lie lurv f ound a verdict of g;iiilt_v. 

A rule having been obtained for a new trial, on the groiuid~that the 
judge misdirected the jury in telling them that the defendant would be 
liable for the acts of his workmen in depositing the rubbish from the 
quarries so as to become a nuisance,. though without the defendant's 
knowledge and against his orders, 

H. S. Oiffard, Q. C, and Poland, showed cause. ^ 

J. W. Bowen and Hughes, in support of the rule. 

Mellor, J. In this case I am of opiniou, and in my opinion my 
Brother Shee concurs, that the direction of my Brother Blackburn 
was right.- -. It is quite true that this in point of form is a proceeding 
of a criminal nature, but in substance I think it is in the nature of a 
civil proceeding, and I can see no reason why a different rule should 
prevail with regard to such an act as is charged in this indictment 
between proceedings which are civil and proceedings which are crim- 
inal. I think there may he nuisances of such a character that the rule 
I am applying here, would not be applicable to them, but here it is per- 
fectly clear that the onlj' reason for proceeding criminallj- is that the 
nuisance, instead of being merely a nuisance affecting an individual, or 
one or two individuals, affects the public at large, and no private indi- 
vidual, without receiving some special injury, could have maintained an 
action. Then if the c ontention of those who rh j t.hp Hii-pntinr) \<=, wrnno 
is to prfvtiilj ThppuJTJK LJTf'uld hnvp fjrfnt di ffic ulty in [;^ p.tt.inp; redress . 
Tilt! Object of tnis indictment is to prevent the recurrence of the nui- 
sance. The prosecutor cannot proceed by action, but must proceed h^ 
indictment, and if this were strictly a criminal proceeding the prosecu- 
tion would be met with the objection that there was no mens rea : that 
the indictment cliarged the defendant with a criminal offence, when in 
realit}- tliere was no proof that the defendant knew of the act, or that 
he himself gave orders to his servants to do the particular act he is 
charged with ; still at the same time it is perfectly' clear that the defend- 
ant finds the capital, and carries on the business which causes the 
nuisance, and it is carried on for his benefit ; although from age or in- 
firmity the defendant is unable to go to the premises, the business is 
carried on for him b}' his sons, or at all events by his agents. Unueri 
these circumstances the defendant must necessarily' give to his 
or agents all the authoritj- tliat is incident to the carrying on of ( 
ness. It is not because he had at some time or other given directions' 
that it should be carried on so as not to allow the refuse from the works 
to fall into the river, and desired his servants to provide some other 

' Argnments of counsel .are omitted. 



5. Unueri 
i servants] 
■ the busi-/ 



254 EEGINA V. STEPHENS. [CHAP. IT. 

place for depositing it, that when it has fallen into the river, and has 
become prejudicial to the public, he can sa}- he is not liable on an indict- 
ment for a nuisance caused by the acts of his servants. It appears to 
me that all it was necessary to prove is, that the nuisance was caused 
in the carrying on of the works of the quarrj-. That being so my 
Brother Blackburn's direction to the jury was quite right. 

I agree that the authorities that bear directlj' upon the case are very 
few.- In the case of Reg v. Russell, 3 E, & B. 942, 23 L. .J. M. C. 173, 
the observations of Lord Campbell might have been justified b^' the cir- 
cumstances of that case, though as I understand it the judgment of the 
other judges did not proceed on the same reasons. It is therefore onl}- 
t^e opinion of Lord Campbell as applied to that case. Whether there 
ii; or is not any distinction between that case and the present may be- 
open to question ; but if there is no distinction, I should be prepared 
rather to have acted upon the reasons which influenced the other judges^ 

(than those which influenced Lord Campbell. Inasmuch as the object 
of the^iridiftTTipnt, jw not, fo pnniali tliji,;jp^P"'1a"t., but really to prevent the 
nniagi^ t[-f)|^~ho ing Contin ued. I think that thg-ta Jili^iice tyhic tf would 
support a civil action would be suflicicuL tcfsupport an mfetnient. 

The rule must be discharged. As I have said, ray Brother Shee con- 
curs with me in that opinion. 

Blackburn, J. I need only add that I see no reason to change th& 
opinion I formed at the trial. I only wish to guard myself against it 
being supposed that either at the trial or now, the general rule that a 
principal is not criminally answerable for the act of his agent is in- 
fringed. All that it is necessarj- to sa}' is this, that where a person main- 
tains works by his capital, and emploj's servants, and so carries on the 
works as in fact to cause a nuisance to a private right, for which an 
action would lie, if the same nuisance inflicts an injurj' upon a public 
right the remed}- for which would be bj- indictment, the evidence which 
would maintain the action would also support the indictment. That is 
all that it was necessary to decide and all that is decided. 

Rule discharged. 



SECT. I.] CHISHOLM V. DOULTON. 25 C 



CHISHOLM V. DOULTON. 

High Court op Justice, Queen's Bench Division. 1889. 

[Exported 22 Q. B. D. 736.] 

Case stated by a metropolitan police magistrate under 20 & 21 Viet, 
c. 43. 

The respondent, the owner and occupier of certain pottery works 
situate in the metropolis, was summoned by the appellant, one of the 
chief inspectors of the metropolitan police, for having on April 18, 
1888, negligently used a furnace employed in his pottery works so that 
the smoke was not effectually consumed or burnt, contrary to the pro- 
visions of 16 & 17 Vict. c. 128, s. 1.^ 

The magistrate dismissed the summons subject to a case, of which 
the material facts were as follows : Smoke issued for the space of ten 
minutes on the morning of the day in question from one of the respon- 
dent's furnaces, but the furnace was properly constructed, and the 
smoke arose by the act of the stoker or person who lighted the fire, 
who might by proper care have prevented the occurrence. Neither the 
respondent nor his foreman were guilty of any negligence. The ques- 
tion for the opinion of the Court was whether the respondent was 
liable for the negligence of the stoker. 

Field, J. My mind has not been altogether free from doubt during 
the argument, but I think upon the whole that the true conclusion to 
arrive at upon the, construction of the Act is that the respondent can- 
not be convicted upon the facts found by the magistrate. The offence 
of which it is sought to convict him is (to put it shortly) that of negli- 
gently using a furnace so as to emit black smoke, which is the thing 

1 By the Smoke Nuisance (Metropolis) Act, 1853 (16 & 17 Vict. c. 128, s. 1), it is 
provided that " every furnace employed in any mill, factory, ... or other buildings 
used for the purpose of trade or manufacture within the metropolis, . . . shall in all 
cases be constructed or altered. so as to consume or burn the smoke arising from such 
furnace; and if any person shall . . . within the metropolis use any such furnace 
which shall not be constructed so as to consume or burn its own smoke, or shall so 
negligently use any such furnace as that the smoke arising therefrom shall not be effec- 
tually consumed or burnt, or shall carry on any trade or business which shall occasion 
any noxious or offensive effluvia, or otherwise annoy the neighbourhood or inhabitants, 
without using the best practicable means for preventing or counteracting such smoke 
or other annoyance, every person so ofiending, being the owner or occupier of the 
premises, or being a foreman or other person employed by such owner or occupier, 
shall, upon a summary conviction for such offence before any justice or justices, forfeit 
and pay a sum of not more than five pounds nor less than forty shillings, and upon a 
second conviction for such offence the sum of ten pounds, and for each subsequent 
conviction a sum doubled the amount of the penalty imposed for tlie last preceding 
conviction," 



256 • CHISHOLM V. DOULTON. [CHAP. IV. 

that the legislature was desirous of preventing. The magistrate has 
found that the furnace was properly constructed, and that the respon- 
'V dent had gone to great expense in taking precautions against the dis- 
charge of smoke from his furnaces. He also found that the respondent 
had taken care to emplo}' an efficient foreman to superintend the vari- 
ous persons having control of the furnaces. In short, the respondent 
was not personally guilty of any negligence whatever. The negligence 
which caused the emission of smoke on the particular morning in ques- 
tion was that of the stoker who lit the fire. And the question is, 
whether the respondent is criminally answerable for the negligence of 
his servant. 

Now the general rule of law is that a person cannot be convicted and 
punished in a proceeding of a criminal nature unless it can be shewn 
that he had a guilty mind. And though the legislature undoubtedlj' 
may enact, as in the case of certain of the offences under this very Act 
it has enacted, that persons shall be criminally responsible for the 
doing of particular acts, even though they have no guiltj' mind in 
doing them, yet it is for the prosecution in each case to make out 
clearlj' that the legislature has in fact so enacted. 

It is said that the respondent is liable because he in fact used this 
furnace for the purposes of his trade. I agree that he used it, for I 
entertain no doubt that if this were a civil proceeding for damages he 
would be liable, and 3'et he could in such proceeding only be liable 
if he were the person qsing it. But the mere use of a furnace so as to 
emit smoke is not an offence against the section, the offence is the 
using of it negligently. Suppose that by an accident which no care 
could have guarded against the furnace had got out of order, whereby 
an emission of smoke ensued, that could not be said to be an offence, 
for there would be no negligence. The essence of the offence is that 
it should be negligent. And here the respondent took all the care he 
could. 

Looking at the cases in which it has been held that no appeal lies to 
the Court of Appeal from decisions relating to public nuisances, I am 
forced to the conclusion that this is not a mere civil proceeding, but 
that the offence charged against the respondent is a criminal offence. 
No doubt in the case of Reg. v. Stephens, Law Rep. 1 Q. B. 702, the 
learned judges came to the conclusion that in that particular case the 
proceeding was civil. Whether thej' were right or wrong in that view 
it is not necessary for me to express any opinion, but they carefully 
guarded themselves against being supposed to infringe on the general 
rule of law that a master is not criminall}' responsible for the acts of 
his servants. That case must be taken to stand upon its own facts. 
The case here being a criminal one I must apply the general rule, and 
by that rule the respondent must be acquitted. 

The conclusion that the respondent is not criminally liable for his 
servant's negligence is much fortified by a comparison of the provi- 



SECT. I.J CHISHOLM V. DOULTON. 257 

sions of s. 1 with those of s. 2. Sect. 1 applies to a stationary thing, 
a furnace fixed in a building, and provides that the person to be 
punished shall be the " person so offending," the person, that is to say, 
who negligently uses the furnace ; whereas s. 2 applies to a thing which 
is transient, a steamer moving up or down the river, and provides that 
the person to be punished shall be not the " person so offending," but 
" the owner or master or other person having charge of such vessel." 
From a comparison of the language of those two sections it seems to 
me that in the one ease the intention of the legislature was to strike at 
the person guilty of the negligence, while in the other, owing to the 
difficulty of finding out who that person was, it struck directly at the 
owner or person in charge. I quite admit that this construction may 
throw difficulties in the way of securing convictions under the former 
section, but I must construe the language as I find it. 

1 must also confess that the provision of s. 1 as to the increase of 
the penalties on repeated convictions raises a doubt in my mind as to 
the correctness of our construction. The penalty paj-able on the first 
conviction is one which, with the costs, there would be great difficulty 
in getting paid by a mere stoker ; and on each subsequent conviction 
the penalty is to be doubled, so that if the stoker is the person respon- 
sible the penalty is to be recovered from a person who is utterly unable 
to pay it. This certainly does seem to suggest that the person respon- 
sible is the person to whom the premises belong, and wlio is capable of 
a series of offences, the opportunity of committing which a stoker 
would probably not be given. 

But although I feel the difficulty I think it better to be bound by the 
general rule of law that a man cannot be convicted of a criminal 
offence unless he had a criminal mind. I am therefore of opinion that 
tlie magistrate was right, and that this appeal must be dismissed. 

Cave, J. I am of the same opinion. It is a general principle of 
our criminal law that there must be as an essential ingredient in a 
criminal oflence some blameworthy condition of mind. Sometimes it 
is negligence, sometimes malice, sometimes guilty knowledge — but as 
a general rule there must be something of that kind which is designated 
by the expression mens rea. Moreover, it is a principle of our criminal 
law that the condition of mind of the servant is not to be imputed to 
the master. A master is not criminally responsible for a death caused 
by his servant's negligence, and still less for an offence depending on 
the servant's malice ; nor can a master be held liable for the guilt of his 
sei-vant in receiving goods knowing them to have been stolen. And 
this principle of the common law applies also to statutory oflences, with 
this difference, that it is in the power of the legislature, if it so pleases, 
to enact, and in some cases it has enacted, that a man may be con- 
victed and punished for an offence although there was no blameworthy 
condition of mind about him ; but, inasmuch as to do so is contrary to 
the general principle of the law, it lies on those who assert that the 



258 CHISHOLM V. DOULTON. [CHAP. IV. 

legislature has so enacted to make it out convincingly by the language 
of the statute ; for we ought not lightly to presume that the legislature 
intended that A. should be punished for the fault of B. 

Now apply those principles to the statute in question. Sect. 1 
enacts that every furnace shall be " constructed or altered so as to 
consume or burn the smoke arising from such furnace." Then comes 
the part of the section which affixes penalties for various acts tending 
to produce the evil against which the legislation is directed. " If anj- 
person shall . . . use any such furnace which shall not be constructed 
so as to consume or burn its own smoke." Now there no condition of 
mind is required as an element in the oflFence ; and we ought to hold 
with regard to that offence that the owner of the works, although not 
cognisant that his furnace is incapable of consuming its own smoke, is 
liable to be convicted if it in fact is so ; for it is expressly enacted that 
if he uses a furnace not properly constructed he shall be liable to the 
penaltj', and he certainly may use it bj- his servants. Then, passing 
over the middle clause for a moment, another part of the section enacts 
that if any person " shall carry on any trade or business which shall 
occasion any noxious or offensive effluvia, or otherwise annoy the 
neighbours or inhabitants, without using the best practicable means for 
preventing or counteracting such smoke or other annoyance," he shall 
be liable. There, again, a mens rea is not essential to the commission 
of the offence, the owner of the premises is absolutely liable if the 
trade is carried on in such a manner. Now go back to the clause 
under which the respondent has been summoned, " or shall so negli- 
gentlj- use any such furnace as that the smoke arising therefrom shall 
not be effectually consumed." This differs from the other clauses in 
that it introduces the word "negligently," a word which imports a 
blamable condition of mind. If that word were not there, the owner 
would be responsible for the use of the furnace in such a waj' that the 
smoke was not consumed although the use was by his servants and not 
personally by himself. But the legislature has chosen to make negli- 
gence an essential ingredient in this particular offence. And, al- 
though the decisions under the Licensing Acts have established that, 
where a statute has expressly prohibited the doing of something with- 
out reference to the condition of mind of the party doing it, it may 
under certain circumstances, and having regard to the object of the 
statute, be reasonable to infer that the legislature intended that the 
master should be responsible if his servant disobeyed the prohibition, 
yet so far as I know no statute has ever yet been judicially interpreted 
as enacting that where negligence is an essential ingredient in the 
offence a master is to be responsible for the negligence of his servant. 

Then is there anything else in the section which points to a different 
interpretation of the clause which we have to construe. I think there 
is not. The section goes on — " Every person so offending, being the 
owner or occupier of the premises, or being a foreman or other person 



SECT. I.] SHEERAS V. DE EUTZEN. 259 

employed by such owner or occupier," shall be liable to the penalties 
provided. That no doubt clearly imports that under certain circum- 
stances the owner or occupier may be guilty of some of the offences 
created by the section ; but it creates no diflBculty, for the words would 
be satisfied by reference to the first-mentioned offence, that of using 
a furnace not properly constructed, which, as I have said, would clearly 
be an offence in the owner. And, further, the owner might be guilty 
of the offence of negligently using the furnace, provided there was 
personal negligence on his part, as, for instance, if he were to employ 
an incompetent person to attend to the furnace, or neglected to pro- 
vide the person employed with the proper appliances to prevent smoke 
arising, or if he continued to retain in his employment a person who, 
by allowing smoke to be emitted, shewed that he was unfit to have the 
control of the furnace. On the other hand the words above referred 
to equally clearly import that under certain circumstances the person 
employed by the owner may be guilty of some of the offences created 
by the section and liable to the penalties thereto attached. And this, 
to my mind, at once disposes of the difficulty suggested with regard to 
the magnitude of the penalties, which it was said a stoker would be 
unable to pay, and which it was said consequently pointed to the 
owner as the sole person who was intended to be held responsible. 

I should be quite content to rest my judgment on a consideration of 
the language of the 1st section alone. But the case for the respondent 
is still stronger when we come to look at the language of the 2nd 
section. The language under that section is very different. The 
legislature has there clearlj' expressed its intention that in the event of 
the stoker on board a steamer being guilty of negligence in the use 
of the furnace, the owner or person in charge of the vessel should be 
responsible. But the fact that the legislature where it intended that 
the master should be responsible for the negligence of the servant has 
expressed that intention in plain language, affords a strong reason why 
we should not infer such an intention where it has not expressed it 
clearly. 

For these reasons I think that the decision of the magistrate must 
be affirmed. Appeal dismissed. 



SHERRAS V. DE RUTZEN. 
High Court of Justice, Queen's Bench Division. 1895. 
[Reported 1895, 1 Q. B. 918.] 

The appellant was the licensee of a public-house, and was convicted 
before a metropolitan police magistrate under s. 16, sub-s. 2, of the 
Licensing Act, 1872, for ha ving unlawfully supplied liquor to a police 
consta t on duty with out having the authority of a superior offic er of 
such pfms table f or so doing. - ' ^ ~ 



260 SHEEEAS V. DE EUTZEN. [CHAP. IV. 

It appeared that the appellant's public-house was situated nearlj- 
opposite a police-station, and was much frequented hy jthp pnjjnft 
when off duty and that on July 16, 189'lpat about 4.40, the police 

■Nonstable in question, being then on dutj', entei-ed the appellant's 
house and was served with liquor by the appellant's daughter in his 
presence. Prior to entering the house the police constable had_xe.- 
moved his armlet, and it was admitted that if a police constable is not 
Tveai'lllg his afnilet that is an indication that he is off duty. Neither 
the appellant nor his daughter made an^- inquiry of the police con- 
stable as to whether he was or was not on duty, but thej' took it for 
granted that he was off duty in consequence of his armlet being off, 
and served him with liquor under that belief.^ 

Day, J. I am clearly of opinion that this conviction ought to be 
quashed. This police constable comes into the appellant's house 
without his armlet, and with every appearance of being off dut y. The 
house was in the immediafe neighborhood of the police-stetion, and the 
appellant believed, and he had very natural grounds for believing, that 
the constable was off duty. In that belief he accordingly served him 
with liquor. As a matter of fact, the constable was on dut^- ; but does 
that fact make the innocent act of the appellant an offence ? I do not 
think it does. He b ad-- no intention to d o- 3 wrnn g fnl n nt j t^q s^tpd '"q 
the bona fide belief that the constable was off dutj'. It seems to me 

'LUat the uuuttiulion that he committed an offence is utterly erroneous. 
An argument has been based on the appearance of the word " know- 
ingly " in sub-s. 1 of s. 16, and its omission in sub-s. 2. In my opin- 
ion the only effect of this is to shift the burden of proof. In cases 
under sub-s. 1 it is for the prosecution to prove the knowledge, while in 
cases under sub-s. 2, the defendant has to prove that he did not know. 
That is the only inference I draw from the insertion of the word " know- 
ingly " in the one sub-section and its omission in the other. 

It appears to me that it would be straining the law to say that this 
publican, acting as he did in the bona fide belief that the constable was 
off duty, and having reasonable grounds for that belief, was neverthe- 
less guilt}' of an offence against the section, for which he was liable 
both to a penaltj' and to have his license indorsed. 

Wright, J. I am of the same opinion. There are many cases on the 
subject, an d it is not very e asy to reconcile them. There i s3. prpa"mp- 
tjoH-tirat mens rea, an eyiTrirterrtisti, or a knowledge oC^th e wrongful- 
nggg Af^^i avr. tvt i\\\ HMjetUlal Ihifreaienci n every o &'ence ; but that 

-pFganjnpH"" ia iiable.tobe cilsplaced_ailill ^?^v the wQ rcU-&g-tbe^tatute 
c reating the offence orlSyTT nr'sMTvJRnt.-ma.t.^.R r with which it deals, a nd 

'B^JijaiistiiajjSP^^*^^''®'^ '• Nichols v. Hall, Law Rep. 8 C. P. 322. One 
of the most remSrteible exceptions was in the case of bigamj'. It 
was held by all the judges, on the statute 1 Jae. 1, c. 11, that a man 
was rightly convicted of bigamj' who had married after an invalid 

1 The statement of facts has been slightly condensed. The arguments are omitted 
-•Ed. 



SECT. I.J SHERKAS V. DE EUTZEN. 261 

Scotch divorce, which had been obtained in good faith, and the validity 
of which he had no reason to doubt : Lolley's Case, R. & R. 237. An- 
other exception, apparently grounded on the language of a statute, is 
Prince's Case, Law Rep. 2 C. C. 154, where it was held by fifteen judges 
against one that a man was guilty- of abduction of a girl under sixteen, 
although he believed, in good faith and on reasonable grounds, that she 
was over that age. Apart from isolated and extreme cases of this kind, 
t he principal classes of exceptions may pp,rhapg hg rprln ced to tln-e e. 
One is a class of ac ts which, in the language of Lush, J., in Davies v. 
Harvey, Law KepTg Q. B. 433, are not criminal in any real sense, but 
are acts whi ch in the public interest are prohibited under a penalty . ' 
SeveTS.1 suclTinstauces are to be found in the decisions on the Revenue 
Statutes, e. g., Attorney General v. Lockwood, 9 M. & W. 378, where 
the innocent possession of liquorice by a beer retailer was held an 
offence. So under the Adulteration Acts, Reg. v. Woodrow, 16 M. & 
W. 404, as to the innocent possession of adulterated tobacco ; Fitz- 
patrick v. Kelly, Law Rep. 8 Q. B. 337, and Roberts v. Egerton, Law 
Rep. 9 Q. B. 494, as to the sale of adulterated food. So under the 
Game Acts, as to the innocent possession of game bj' a carrier : Rex«. 
Marsh, 2 B. & C. 717. So as to the liability of a guardian of the poor, 
whose partner, unknown to him, supplied- goods for the poor : Davies 
V. Harvey, Law Rep. 9 Q. B. 433. To the same head may be referred 
Reg. V. Bishop, 5 Q. B. D. 259, where a person was held rightl}- con- 
victed of receiving lunatics in an unlicensed house, although the jury 
found that he honestly and on reasonable grounds believed that they 
were not lunatics. Another cl.ias cf>rnprp|iPT^rla anmp, a nd perhaps a ll^ 
p ublic nuisanc gs-^-Jteg. v. Stephens, Law Rep. 1 Q. B. 702, where the 
emploj-er was held liable on indictment for a nuisance caused bj- work- 
men without his knowledge and contrary to his orders ; and so in Rex 
V. Medley, 6 C. & P. 292, and Barnes v. Akroyd, Law Rep. 7 Q. B. 474. 
Lastly, th ere may be cases injyhich, although the proce eding is criminal 
, in form. "it is real ly only a summary mode of enforcing a civil rig ht : 
see per WiLLiAMs'Slid WjLLitSj.-J^rnh Morden v. Porter, 7 C. B. (N, S.) 
641 ; 29 L. J. (M. C.) 213, as to unintentional trespass in pursuit of 
game ; Lee v. Simpson, 3 C. B. 871, as to unconscious dramatic piracy; 
and Hargreaves v. Diddams, Law Rep. 10 Q. B. 582, as to a bona fide 
belief in a legallj' impossible right to fish. But, except in such cases 
as these, there must in general be guilty knowledge on the part of the 
defendant, or of some one whom he has put in his place to act for him, 
generally, or in the particular matter, in order to constitute an offence. 
It is plain that if guilty kj ogadefhtu is not uecutisayv,-QC L.care on the p art/y 
of the publi can could save him from a conviction un der s. 16, sub-s. 2, 
since it wouldbe as eas}' for the constable to denj- that he was on dut^- 
when asked, or to produce a forged permission from his superior officer, 
as to remove his armlet before entering the public-house. I am, there-/ 
fore, of opinion that this conviction ought to be quashed. 

Conviction quashed. 



262 BANK OF NEW SOUTH WALES V. PIPER. [i'li^- IT. 



BANK OF NEW SOUTH WALES v. PIPER. 

Judicial Committee op the Peivt Cocncil. 1897. 

[Reported 1897,^. C. 383.] 

The judgment of their Lordships was delivered hy 

Sir Eichaed Cotjch. The suit in this appeal was brought by the 
respondent against the appellants for falsely and maliciously and with- 
out reasonable or probable cause making a charge against him before 
a justice of the peace, upon which he was summoned to appear at the 
police court at Cowra in New South Wales, and was committed for 
trial at the court of quarter sessions at Cowra. Afterwards the 
attornej- general refused to prosecute. The defendants pleaded not 
guilty. The trial took place in March, 1895, before Simpson, J., when 
the jury found a verdict for the plaintiff for 1000^. damages. On May 
7, 1895, a rule nisi for a new trial or for a nonsuit or verdict for the 
defendants, pursuant to leave reserved at the trial, was granted by 
the Supreme Court. On May 11, 1896, the rule was discharged by the 
Chief Justice and Owen, J. , Stephen, J. , the third judge, dissenting. 

The appellants are a banking company incorporated in the Colony 
of New South Wales by Act of Parliament and Deed of Settlement. 
The respondent is a farmer and grazier residing near Cowra. By a 
deed of mortgage dated February 29, 1892, the respondent assigned to 
the appellants by way of mortgage 2050 sheep,- ninetj-five head of 
cattle, and twelve horses, as a collateral security for credit advances 
and accommodation to the extent of 2501. in account current which the 
bank had agreed to grant to him. The mortgage was dulj' executed 
and registered in accordance with the provisions of the Act 11 Vict. 
No. 4. Sect. 7 of that Act is as follows : — 

" And whereas it is expedient, with a view to increase the public con- 
fidence in the validity of such preferable liens on wool and mortgages 
of live stock to surround them with the penal provisions necessary for 
the punishment of frauds : Be it enacted that any grantor of any such 
preferable lien on wool or of any mortgage of sheep, cattle, or horses 
and of their increase and progeny under this Act, whether such grantor 
shall be principal or agent, who shall afterwards by the sale or delivery 
of the wool under any such lien, without the written consent of the lienee, 
to any purchaser, pawnee, or other person, or by selling, steaming, 
or boiling down or causing to be sold, steamed, or boiled down without 
such written consent as aforesaid the sheep whereon the same shall be 
growing with a view to defraud such lienee of such wool or of the value 
thereof, or who shall, after the due execution and registry of any such 
mortgage, without the written consent of the mortgagee thereof, sell or 
dispose of or steam or boil down, or cause to be sold and disposed of or 



SECT. I.] BANK OF NEW SOUTH WALES V. PIPEE, 263 

to be steamed or boiled down, any sheep, cattle, or horses or their 
increase or progeny, or who shall in any way or by any means whatso- 
ever or howsoever directly or indirectly destroy, defeat, invalidate, or 
impair, or any other person or persons who shall wilfully and knowingly 
incite, aid, or abet any such grantor directly or indirectly to defeat, 
destroy, invalidate or impair the right of property of any lienee in the 
wool of any sheep mentioned and described in any such registered 
agreement as aforesaid, or the right of property of any such mortgagee 
as aforesaid, in any sheep, cattle, or horses or their increase and progen}^ 
mentioned in any mortgage duly executed and registered as aforesaid, 
under the provisions of this Act, shall be severally held and deemed 
guilty of an indictable fraud and misdemeanor ; and being thereof duly 
convicted, shall be severally liable, in the discretion of the judge or 
Court before whom any such offender shall be so convicted, to fine or 
imprisonment, or to both fine and imprisonment, for any period not ex- 
ceeding three years with or without hard labor at the discretion of 
such Court or judge." 

In May, 1893, w hilst the mortgage was subsisting, and the res pon- 
dent was indebted Eheretm-tcrtbe appellants in about 240^., the respon - 
"dent, without their written co nsent, sold and delivered to on e Robert 
- Fhil ip I Bn g 615 u h uu p ~aiKranumb er of cattle, part of the sheep and 
cattle inclu ded in the mortg age] Un JNovember JJ,^ 1893, James 
Thomas Evans, the manager of the bank at Cowra, swore an infor- 
mation under s. 7 before a justice of the peace that the respondent 
on or about May 19, 1893, without the written consent of the bank, 
sold and disposed of the sheep and cattle to King. Upon this infor- 
mation the respondent was brought before the justice of the peace and 
committed for trial, but the Attornej'-General, as already stated, re- 
fused to file a bill against him. The action was then brought. 

At the trial the respondent admitted the execution and registration 
of the mortgage and the sale to King, and did not suggest or set up 
that at the time of tlie sale he had or believed himself to have the 
written consent of the appellants or their manager to the sale ; but he 
swore that befo re the sale he ob tained the verbal consent of Evans to 
it. At the close of the respondent's case the appellants'' counsel ap- 
plied for a nonsuit on the ground that on the respondent's evidence he 
was in fact guilty of the offence with which he had been charged, and 
that even if it were proved that the appellants had given a verbal con- 
sent to the sale, it would afford no answer to the charge ; and that, 
therefore, upon the admitted facts there was reasonable and probable 
cause for the information and charge. The learned judge declined to 
nonsuit, but reserved leave to the appellants to move to enter a non- 
suit or a verdict for them. Evans was then examined as a witness for 
the appellants. He denied that he gave the respondent any authoritj' 
orall}' or in writing to make the sale to King ; but the jurj', in answer 
to the first question put to them by the learned judge, found that 



264 BANK OF NEW SOUTH WALES V. PIPER. [CHAP. IV. 

Evans did verbally authorize the sale. That must therefore be taken 
as the fact. Two other questions were submitted to the jury, one 
being: "Did Evans entertain an honest belief that the plaintiff was 
guilty of the offence charged in the information, and, if so, was his 
belief founded on such reasonable grounds as would lead an ordinarilj- 
prudent and cautious man, placed in the position of Mr. Evans, to the 
conclusion that the plaintiff was probably guilty of the offence?" and 
the other: "Did Evans honestly believe that the plaintiff, having sold 
and disposed of certain slieep and cattle, covered by the mortgage to 
the bank, without written authority, although he may have had verbal 
authority, was guilty of an indictable offence under 11 Vict. No. 4, s. 
7, and, if so, was his belief founded on such reasonable grounds as 
would lead a fairly cautious and prudent man in the position of Mr. 
Evans to entertain such belief?" To both these questions the jury 
answered " No.'' 

The decision of the question whether there was reasonable or proba- 
ble cause for the charge depends upon the construction of s. 7. It was 
for the judge to decide that question, as a matter of law, upon the facts 
admitted or found by the jur3'. I t is to be observed that in the first 
part of s. 7, which relat es to the sale i 
a lieruJtlte-wtrrd g""^with a view to defraud" are introduced as an esse n- 
.Jial—qtrslfEj^'oFthe offence ; but in the part of the section which relates 
to-tfag-Bate"ajrd disp osition of sheep or cattle that have been mortga g;eJ. 
H.lin.mj Timrris_grp nmit.t.p,£L_ This oannnt be considered to be an uninten- 
--ttonafoniission unless it is shewn to be so hx the context of the sec- 
tion. Their Lordships do not see anj' ground for construing the 
section as if the words "with a view to defraud" had been inserted 
in this part of it. They cannot alter the offence created by the statute 
b}' the introduction of words which the Legislature has omitted. 

It was certainly competent to the Legislature of New South Wales 
to define a crime in such a way as to make the existence of any state 
of mind of the perpetrator immaterial, and the question is whether in 
the case of the sale b}' the mortgagor it has not done so. The enact- 
ment in this part of s. 7, according to the ordinarj' meaning of the 
words, appears to their Lordships to provide that the selling without 
a written consent shall be punished as if it were a fraud. In their 
Lordships' opinion neither the preamble to the 7th section nor the 
enactment that the persons offending shall be held and deemed guilty 
of an indictable fraud justifies the opinion that an intent to defraud 
must be implied, or that it is open to the person charged to give evi- 
dence to rebut the presumption of fraud. It i s thn ini-nnti on of tl ia 
Legisla ture to make a sale b.v ''h" n""rtfl'i^"'' without the wri t ten con - 
sent ofthe mort gagee a criminal offe nce. It was strongly urged by 
the respondent's counsel that in order to the constitution of a crime, 
whether common law or statutory, there must be 9nens rea on the part 
of the accused, and that he maj' avoid conviction by shewing that such 



SECT. I.J BANK OF NEW SOUTH WALES V. PIPEE. 265 

mens did not exist. Tliat is a proposition which their Lordships do not 
desire to dispute ; but the questions whether a particular intent is made 
an element bf the statutory crime, and when that is not the case, 
whether there was an absence of mens rea in the accused, are questions 
entirely different, and depend upon different considerations. In cases 
when the statute requires a motive to be proved as an essential element 
of the crime, the prosecution must fail if it is not proved. On the 
nth<>r_h^pdi t^"^ J ibspripe nf mens rea really consists in an honest a nd 
reaso nable belief entertained by the accused of the existenc e of facts 
w'EicHTif true, woul d make the act char.^ firl nrninnt him inngponf The 
5aS6 of bnerras v. De Kutzen, [1895] 1 Q. B. 918, where the convic- 
tion of a publican for the offence of selling drink to a constable on 
duty was set aside by the court because the accused believed, and had 
reasonable grounds for the belief, that the constable was not on dutj' at 
the time, is an illustration of its absence. The circumstances of the 
present case are far from indicating that there was no mens rea on the 
part of the respondent. He must be presumed to have known the pro- 
visions of s. 7, whether he was actually acquainted with its terms or 
not. Then he knew that he had not the written consent of the mort- 
gagee; and that knowledge was sufficient to make him aware that he 
was offending against the provisions of the Act, or, in other words, 
was sufficient to constitute what is known in law as mens rea. If the 
offence of which the offender is convicted is a venial one, the Act puts 
it within the discretion of the judge who tries the case to award a 
nominal punishment. At tj ie end of the defendants' case the learned 
judge oug ht to have ruled that , there being n o written consent, fB Cre 
w as reasonable and probable cau se for making the etetrg'e in Llie lirfor- 
mation, and he should have directed the jury to find a verdic t for the 

Jlfefea dauts" Tho qnoatirvna whiph wprp Ullhnii Uj^ii--tTTjynr^m:y~^^ov^ 

ne cessarTT^nd ou^&t-ftet to t ia-KC - — tir r m su bmitted! Their Lordships 
will therefore humbly advise Her Majesty to discharge the order of the 
Supreme Court, and to order the rule to enter a verdict for the defen- 
dants to be made absolute with costs. The respondent will pay the 
costs of this appeal. 



266 MYERS V. STATE. [CHAP. IV. 



MYERS V. STATE. 
Supreme Court of Errors of Connecticut. 1816. 

[Riported 1 Connecticut, 502.] 

This was an information, brought before the county- court, on the 
statute,^ for suffering and allowing A. M. and others to travel in a 
hackney-coach owned bj- the defendant, from New Haven to Middle- 
town, on the Sabbath-day.^ 

The court charged the jury that it was incumbent on the defendant, 
if he justified his act as a case of necessity or charity, to prove by evi- 
dence on the trial that a case of necessity or charitj- existed, and that 
the representation of the passenger to the driver did not in law amount 
Ito a justification, unless the same was proved to have been true when 
• made. 

Swift, C. J.' The letting of a carriage on Sunday, on the ground of 
necessitj' or charit}', is not prohibited bj- the statute. I f then a man 
acts honest jy_on-8 tich principle, an d re all j' bpl'p'^pg iha± ^he-ease of 
^TTecessity or charity exists, he isnot_criiniaal. It is true, a man ma}' 
be deceived and impoii ed~upon bj" falsehood and misrepresentation ; 
yet if he verily believes that the case exists, and acts on that ground, 
it is as much a deed of charitj^ in him, if the fact does not exist, as if 
it does. It is a letting of the carriage as a matter of charity. Unless 
this construction be adopted, a man may be convicted of a crime when 
he had no intent to violate the law, and when his object was to perform 
a deed of charity conformable to law. This would oppugn the maxim 
that a criminal intent is essential to constitute a crime. 

It is true, on this construction, attempts may be made to evade the 
statute ; but in all cases it will be a question of fact to the jurj' whether 
the part}' acted under a serious impression of the truth of the repre- 
sentation made to him. If there be any appearance of coll usion , any 
mana gement to elude the statute, tnen the excuse o 'lghti .""t t'=> aynil : 
SE^Dythe exercise of a proper discretion the violaMon of this law 
may comrhonly be prevented. Rnt on a, diffp.rer |,tr rinn°trn"tion, ill 
wo rks of charity wou ld be prevented. If a man is bound to prove not 
'"only ttiat he believed it to be an tlt't of charity, but that the facts existed, 
otherwise he should be liable to be punished, there would be verj- great 
danger in performing the charity which the statute does not prohibit. 

The court, then, in charging the jurj' that the facts constituting the 
act of charity iBust be proved to have existed, committed an error. 

1 Oct. Sess. 1814, c. 17. " 'So proprietor ... of any coach . . . shall suffer or allow 
any person or persons to travel, except from necessity or charity, in such carriage, 
within this state, on the Sabbath or Lord's day." 

2 The statement of facts ha.s been abridged. 

' The concurring opinion of Gould, J. , is omitted. 



SECT. I.j BIRNEY V. STATE. 267 

They should ha ve directed the i 'lryi '^^ ^^'"Y finnnrl th-it thn AafonAoni. 
had reasonable ground to believe from the representation made to him 
Uhal the case of chaiit} eji.Lsl.nJ, and that he honc3tl_y deled Utider 'tbe 
i Wi ' esMum uf tUat ' beliuf, they ou^ht to flad him not ^ililty." ~~" 

""amoTopinion there is error in tfie judgment of the county court.* 



BIENEY V. STATE. 

Supreme Codrt of Ohio. 1837. 

[Reported 8 Ohio, 230.] 

Judge Wood * delivered the opinion of the court. 

The statute upon which this indictment is predicated enacts "that 
if any person shall harbor or secrete any black or mulatto person, the 
property of another, the person so offending shall, on conviction thereof, 
be lined any sum not less than ten nor more than fifty dollars." We are 
first called to consider whether, under this enactment, the indictment 
is sufl8cient. 

It is required that every indictment shall have a precise and sufficient 
certainty. The omission of a word of substance is fatal. (2 Haw. P. C. 
chap. 25, s. 4.) Vfprp. the p1a.int.iff i n error is charg-fid with harhori nfy 
and secret ing a ce rtain mnlatt," g'jrl ^ y the name o f Matilda, the p rop- 
— ^rty of L. Larkin. T^ fiere ia tin avermoi^^. th at the plaintiff' in error "kn ew 
th e tacts alleged, that Matilda was a slave and the property of L. Lar- 
king or of any other pei;^ on ; and such is not the legal inference, in a 
state whose constitution declares that all are born free and equal, and 
that there shall be neither slavery nor involuntarj' servitude within its 
limits, except as a punishment for the commission of crimes. Qn t,^ jp 
co ntrary', t hu piubuuipliuii m in luvui of Ir eedom. "The scienter, or 
knowledge of the plaintiff in error, of this material fact was an ingredi- 
ent necessary to constitute his guilt. T his knowledge should_ ^ajcer^en 

flvPi-rpH in t.hp indip.tment^ t^Hd pr»voH nn thp trial ; fnr wit.hnnt snp.h 

knowledge the act charged as a crime was innocent in its character. 
We know of 110 c ase where positive action is held criminal, unless the 
intention accompanies the act, either expressly or necessarily inferred 
from the act itself. '■'■Ignorantia facti doth excuse, for such an igno- 
r9,nce, many times, makes the act itself morally involuntary." 1 Hale's 
P. C. 42. 

It is true that the statute upon which the indictment is founded 
omits the scienter, and the indictment covers all the facts enumerated 
in that statute. But this is not suflflcient ; it cannot be assumed 
that an act which, independent of positive enactment, involves no 

1 See Bradley v. People, 8 Col. 599. — Ed 

2 The opinion only is given ; it sufficiently states the case. 



268 COMMONWEALTH V. MASH. [CHAP. IV. 

I 

moral wrong, naj', an act that in many cases would be highly praise- 
worthj', should be made grievously criminal, when performed in total 
unconsciousness of the facts that infect it with crime. This court has 
determined differentlj'. In the case of Anderson against the State, 7 
Ohio Eep. part 1, 255, the plaintiff in error was indicted for uttering 
and publishing forged certificate of deposit, without averring his knowl- 
edge of such forgery. The statute under which the indictment was 
found does not, in express terms, make this knowledge a constituent 
of the crime. Nevertheless, the court held that th e criminality could 
not exist without the knowledge, and that a n indictment that did no t^ 
iw'er it wao dofcctivc : — I'hal case runs upon all fours with this, and the 
further investigation of the principles upon which it is based confirms 
the court in the conviction that it is correct. This judgment must be 
reversed for this cause, and it thus becomes unnecessary to decide upon 
the other points, so laboriously argued for the plaintiflT in error, and of 
a character too important in their bearing upon the whole country, to 
be adjudicated upon without necessity.' 



COMMONWEALTH v. MASH. 
Supreme Judicial Court of Massachusetts. 1844. 

[Reported 7 Metcalf, 472.] 

The defendant was indicted, on the Rev. Sts. c. 130, s. 2, for marry- 
ing a second husband while her former husband was living. 

At the trial in the Municipal Court, at August term, 1843, there was 
evidence tending to prove that the defendant was married to Peter 
Mash on the 7th of December, 1834, and that she afterwards cohabited 
with him until about the 10th of November, 1838, when he left home 
in the morning, saying he should return to breakfast, and was not after- 
I' wards heard from by the defendant till about the middle of JUay, 1842, 
when he returned; that on the 10th of April, 1842, she was married, 
in Boston, by a clergyman of competent authority to solemnize mar- 
riages in this Commonwealth, to William M. Barrett, with whom she 
cohabited in Boston until she heard that said Peter Mash was still liv- 
ing, when she immediately withdrew from said Barrett, and had no 
intercourse with him afterwards ; that she was-ef-tmi formlv good clf a,r- 
ac'ter>»d"vrrtuous c6hdu(it, aml-tttaai ^ie hoi iestlx-b''^iftyfid , ?t thpJJTUf 
of said..sec^i4 -it r H i I ' Uige. lli!j fr«aixL.Peter Magh^ wa o- doad -;-lhat during 
his absence, as aforesaid, she made maiiy^quiries, and was unable to 
obtain any information concerning him, or to ascertain whether he was 
or was not alive. 

1 See U. S. V. Beiity, Hempst. 489 : Lee v. Lacey, 1 Cranch C. C. 263 ; conf. State 
V. B. & S. Steam Co. 13 Md. 181. — Ed. 



SECT. I.] COMMONWEALTH V. MASH. 269 

The counsel for the defendant moved the court to instruct the jury 
that if they believed all the facts which the aforesaid evidence tended 
to prove, she was entitled to an acquittal. But the co urt refused so to 

ina<^ir.<: t.hp j |]ry , nnrl Ti^s firnp f^jH tliem thnf t.hn flrfor|f |^nt.'a )^nOran(% 

'TEaF'her said husband, Peter, Mash, was alive^and her IjnnPP^ ]r,if\\of 
tBat h e was dead, constituted no lej^al defe iicel 

"TEe'jury found the defendant guilty, and she filed exceptions to the 
instruction of the court. 

Hallett, for the defendant. 

S. D. Parker, for the Commonwealth. 

Shaw, C. J. The court are of opinion that the instruction to the jury 
was right. The rule of law was certain!}- strongly expressed by the 
judge, no doubt in consequence of the terms in which the motion of the 
defendant's counsel was expressed. The rule, as thus laid down, in 
effect was, that a woman whose husband suddenly left her without 
notice, and sa5-ing, when he went out, that he should return immediatel}-, 
and who is absent between three and four years, though she have made 
inquiry after him, and is ignorant of his being alive, but honestly believes 
him to be dead, if she marries again is guilty' of polygamj'. The cor- 
rectness of this instruction must of course depend upon the construction 
of the Eev. Sts. c. 130, which regulate this subject. The second sectioni 
imposes a penaltj' upon any person who, having a former husband or wife, 
shall marry another person ; with some exceptions. The third sectioni 
excepts from the operation of the statute "any person whose husband \ 
or wife shall have been continuallj- remaining beyond sea, or shall have 1 
voluntarily withdrawn from the other, and remained absent for the \ 
space of seven years together, — the party marrying again not knowing \ 
the other to be living within that time." 

It appears to us that in a matter of this importance, so essential to 
the peace of families and the good order of society, it was not the inten- 
tion of the law to make the legality of a second marriage, while the 
former husband or wife is in fact living, depend upon ignorance of such 
absent party's being alive, or even upon an honest belief of such per- 
son's death. Such belief might arise after a very short absence. But 
it appears to us that the legislature intended to prescribe a more exact 
rule, and to declare, as law, that no one should have a right, upon such 
ignorance that the other partj' is alive, or even upon such honest belief 
of his death, to take the risk of marrying again, unless such belief is 
confirmed by an absence of seven years, with ignorance of the absent 
party's being alive within that time. It is analogous to other provis- 
ions and rules of law, bj' which a continued absence of a person for 
seven years, without being heard of, will constitute a presumption of 
his death. Loring v. Steineman, 1 Met. 204 ; Greenl. on Ev. s. 41. 

We are strongly confirmed in this construction of the statute, and 
that such was the deliberate expression of the legislative will, by refer- 
ence to the report of the commissioners for revising the statutes. It 
appears, by their report upon this provision, that they prescribed a much 



270 COMMONWEALTH V. BOYNTON. [OHAP. IV. 

more mitigated rule, and proposed to extend the exception "to anj- 
person whose former husband or wife, having been absent one year or 
more at the time of such second marriage, shall be believed to be dead." 
This proposal was stricken out bj- the committee appointed to consider 
the report of the commissioners, and the legislature adopted their 
amendment, and passed the law as it stands, without the proposed 
additional exception. This shows at least that the attention of the 
legislature was called to the subject, and that it was by design, and not 
through inadvertence, that the law was framed as it is. 

It was urged in th e argument th at w here there is no criminaL intent. 
thei'e uati be no guilt ; and if the former husband was honestlj' believed 

*T6 be dead, Lhere~couI3 be no criminal intent. The proposition stated 
is undoubtedly correct in a general sense ; but the conclusion drawn 
from it in this case by no means follows. Whatever one voluntaril}' 
does, he of course intends to do. If the statute has made it criminal 
to do any act under particular circumstances, the party voluntarily doing 
that act is chargeable with the criminal intent of doing it. On this 
subject the law has deemed it so important to prohibit the crime of 
polj'gamy, and found it so difHcult to prescribe what shall be sufficient 
evidence of the death of an absent person to warrant a belief of the 
fact, and as the same vague evidence might create a belief in one mind 
and not in another, the law has also deemed it wise to flxadgfinite 
perio d of seven years' coTTLitiued abbenw, wllhoul knowiedgeofth e con- 

—trafy, to warrant a belief that the absent person is actually dead. One, 
theiefuie, who marries within LhaL Lime, If the other party b'e actually 

f living, whether the fact is believed or not, is chargeable with that crimi- 
nal intent, bj' purposely doing that which the law expresslj- prohibits. 

JExceptions overruled} 

[The court did not pass sentence on the defendant, but took a recog- 
nizance for her appearance in court at a future day. On the 9th of July, 
1844, the defendant received a full pardon from the governor, which 
she brought into court on the 15th of said Julj', and pleaded the same 
in bar of sentence. Whereupon the court ordered her to be discharged.] 



COMMONWEALTH v. BOYNTON. 
StTPREME Judicial Court of Massachusetts. 1861. 

[Reported 2 Allen, 160.] 

Indictment against the defendant for being a common seller of 

intoxicating liquor. At the trial in the Superior Court, after certain 

sales of beer had been testified to, the defendant otfered evidence to 

'prove that the article sold was not intoxicating, and that, if it were 

1 See, contra, Squire v. State, 46 Ind. 459. — Ed. 



SECT I.] COMMONWEALTH V. BOYNTON. 271 

SO, he had no reason to suppose that it was so, and bought it for beer 
which was not intoxicating, and did not believe it to be intoxicating ; 
but Bbigham, J., rejected the latter part of the evidence offered, and 
i nstructed the jur y that if f-.lip r)pfp ndant sold ^jfinnr \vfiip|i wgfi intV'gi 
eating, as alleged, he might b e found guilty,, although he did not k now 
of-uuppuijH that it yftw s^' The defendant was convicted, and alleged 
exceptions. 

J. Q. A. Griffin for the defendant. 

Foster, Attorney-General, for the Commonwealth. 

Hoar, J. T he court are of opinion that t.hp. sa.lf- f)f intoxicatin g 
iiqnnvs in vinjfftinn nf t.hp Btn^^'it" prffhibitjft p js not One of those cas es 
m which it is necessary to allegp. or prove that the pe Tsnn ntjprpy^d 
wita the otfen ce knew the illfi iCral character o f his act ; or in which a 
want 01 such knowledge would avail him in defence. TFTJie defendant 
purposely sold the liquor, which was in fact intoxicating, he was bound 
at his peril to ascertain the nature of the article which he sold. Where 
the act is expressly prohibited, without reference to the intent or pur- 
pose, and the party committing it was under no obligation to act in 
the premises, unless he knew that he could do so lawfullj', if he violates 
the law he incurs the penalty. The salu tar y rule thf i t fvp r y mf ^ n i n ^ 
conclusively presumed to know the law is sometimes prod nctivo o ^ 
h ardship lit [)ai'ticii1n i' KUi^. — And th e hardship ih no gieatei ' — w her e ■ 
the law imposes the duty to ascertain a fact. 

It could hardly be doubted that it would constitute no defence to an 
indictment for obstructing a highway, if the defendant could show 
that he mistook the boundaries of the way, and honestly supposed 
that he was placing the obstruction upon his own land. The same 
principle was applied in the case of bigamy. Commonwealth v. Mash, 
7 Met. 472 ; and in the case of adultery, Commonwealth v. Elwell, 2 
Met. 190. 

Exceptions overruled.^ 

1 See ace. Com. v. Farren, 9 All. 489 ; State v. Smith, 10 E. T. 258 (selling adul- 
terated milk); State v. Stanton, 37 Conn. 421 (selling adulterated liquor). 

Contra, Teague v. State, 25 Tex. App. 577 (selling diseased meat). 

On the same principle it has been held that one is guUty (under a statute forbid- 
ding it) for allowing a minor to remain in his billiard saloon, though he did not know 
that the youth was a minor. State v. Probasco, 62 la. 400. (See, contra, Marshall v. 
State, 49 Ala. 21 ; Stern v. State, 53 Ga. 229.) The same decision has been reached 
in a prosecution upon a statute forbidding the sale of intoxicating liquor to a minor. . 
McCutcheon v. People, 69 111. 601 ; Ulrich v. Com., 6 Bush, 400 ; In re Carlson's 
License, 127 Pa. 330 ; State v. Hartfiel, 24 Wis. 60. (See, contra, Mulreed v. State, 
107 Ind. 62.) So in the case of a sale to a common drunkard. Barnes v. State, 19 
Conn. 398. (See, contra, Williams v. State, 48 Ind. 306). 

On the same ground one is held guilty under a statute forbidding the sale of oleo- 
margarine, though he sold oleomargarine in ignorance of its real nature. State ». 
Newton, 50 N. J. 534 ; Com. v. Weiss, 139 Pa. 247. 

See also U. S. v. Leathers, 6 Sawy. 17; People v. Harris, 29 Cal. 678 ; State* 
Welch, 21 Minn. 22. — Ed. 



272 STATE V. CHICAGO, MILWAUKEE & ST. PAUL EY. [CHAP. IV. 



STATE V. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY. 

Supreme Court of Iowa. 1903. 
[Reported 122 la. 22.] 

Ladd, J.^ The defendant admitted the failure of its train to stop 
within 800 feet and more than 200 feet from the crossing, and inter- 
posed the defence that the engineer in charge did all he could to stop 
it, but that, owing to the brakes not working in the usual manner, the 
I momentum of the train carried it over the crossing. The court sub- 
Imitted the case to the jury on the theorj- that the burden of proof was 
Ion the defendant, in order to exonerate itself from liabilitj', to show 
' by a preponderance of evidence that the failure to stop was not due to 
anj- negligence on the part of its employees in operating the train, or 
of the company in not having proper appliances, or in keeping those 
had in proper condition, and that the comp an y might be Ij ahle even 
though the engineer was not. Possi blyjhat shaulrl havp hf^pi7tiTg~Vaw^ 
but it was not so written by the legislatu re. The statute in question 
"SeadsT'^^All trains run upon an}- railroadTn this state which intersects 
or crosses any other railroad on the same level shall be brought to a 
full stop at a distance of not less than two hundred and not more than 
eight hundred feet from the point of intersection or crossing, before 
such intersection or crossing is passed, except as otherwise provided in 
this chapter. An}' engineer violating the provisions of this section 
shall forfeit one hundred dollars for each offence, to be recovered in an 
action in the name of the State for the benefit of the school fund, and 
the corporation on whose road the offence is committed shall forfeit the 
sum of two hundred dollars for each offence, to be recovered in like 
manner." Section 2073, Code. The latter part of the statute is purely 
penal in character, with the evident object of punishing the offender, 
rather than afford a remedy for the wrongful act. In this respect it 
differs radically from provisions awarding damages flowing from cer- 
tain acts, such as the setting out of fire. Its meaning, then, cannot be 
extended beyond the terms employed. But one offence is denounced 
by it, and that is the omission of the engineer to stop the train as 
required. The first sentence commands what shall be done — defines 
a duty ; the first clause of the second sentence imposes a penalty on 
any engineer for "each offence" of omitting such duty; the second 
clause of the second sentence adds a penalty against the corporation 
"on whose road such offence is committed." To what do these last 
words refer? Manifesth', to the offence of which the engineer is guilty, 

1 Part of the opiuion only is given. — Ed. 



SECT. I.J STATE V. CHICAGO, MILWAUKEE & ST. PAUL BY. 273 

No other is mentioned in the section. The statute cannot be fairly read 
otherwise. The thought seems to have been that, as the engineer con- 
trols the train, the fault in failing to stop as required is primarily his, 
and secondarily that of the company for which he acts. wThere. ia ly 
ground for holding that t h ° mrr'pp'iy ^^"y t^" H'I^I" inrinpon^ont nf ^p y 
finUt of __tti£. engij;iger. The forfeiture of the corporation is made to 
depend upon his guilt of the oflfence defined, and upon that only. 

As the statute is purely penal in character, it ought not to be 
construed as fixing an absolute liability. ,_A failure t o stop may som e- 
times occur, notwithstanding the utmnat. ofF<^>-ta »f tv>p oTigjjT»<Md?nrn 
^vfh— °y^ th'a r>m;go;r»ri~222Jlp1' bp r°g fli rdvr l nn unl niyfyil The law 
never designs the inttictionof punishment where there is no wrong. 
The necessity of intent of purpose is alwa3's to be implied in such 
statutes. An actual and consciou s infraction of duty is contemplate d. 
The maxim, '' Actus non facit reum nisi mens sit rea" obtains in all 
penal statutes unless excluded by their language. See Regina v. 
Tolson, 23 Q. B. Div. 168, where it was said, " Crime is not com- 
mitted where the mind of the person committing the act is innocent." 
See, also, Sutherland on Statutory Construction, section 364 et seq. 
No doubt many statutes impose a penalt}' regardless of the intention 
of those who violate them, but these ordinarilj' relate to matters which 
may be known definitely in advance. In such cases commission of the 
offence is due to neglect or inadvertence. But even then it can hardly 
he supposed the offender would be held if the act were committed when 
in a state of somnambulism or insanit)'. As it is to be assumed in the 
exercise of the proper care that the engineer has control of his train at 
all times, proof of the mere failure to stop makes out a prima facie 
case. But this was open to explanation, and if, from that given, it 
was made to appear that he made proper preparation, and intended 
to stop, and put forth every reasonable effort to do so, he should be 
exonerated. See Furley v. By. Co., 90 Iowa, 146. 



274 EEGINA V. SHAKPE. [CHAP. IV. 



SECTION n. 

The mens rea : Intent. 

REGINA V. SHARPE. 
Crown Case Eeseeved. 1857. 

[Reported 7 Cox C. C. 214.] 

The defendant was tried at Hertford, before Erie, J., who reserved 
the following case : — 

The indictment in the first count charged that the defendant, a 
certain burial-ground belonging to a certain meeting-house of a con- 
gregation of Protestants dissenting from the Church of England, 
unlawfully did break and en ter, and a. ce rt ain grave ^ jiere. in which 
the body of one LouiSS, Sliarpe, had before then been interred, with 
force and arms, unlawfully, wilfully, and indecently did dig open, 
and the said body of the said Louisa Sharpe out of the said grave, 
unlawfully, wilfully, and indecentlxJid tnikf> nnd cnrr.y.^jvay. 

And there were other counts, varying the charge, which may be 
resorted to if necessary. The evidence was, that the defendant's 
family had belonged to a congregation of dissenters at Hitchin, and 
his mother, with some other of his relations, had been buried in one 
grave in the burying-ground of that congregation there, with the con- 
sent of those who were interested. That the father of the defendant 
had recently died. That the defendant prevailed on the wife of the 
person to whom the Icey of the burying-ground was intrusted to allow 
him to cause the grave above mentioned to be opened, under the pre- 
text that he wished to bury his father in the same grave, and, in order 
thereto, to examine whether the size of the grave would admit his 
father's coffin. That he caused the coffins of his stepmother and two 
children to be taken out, and so came to the coffin of his mother, 
which was under them, and was much decomposed, and that he 
caused the remains of this coffin, with the corpse therein, to be placed 
is n o authority.for aavinp- tlmt r platinngt^i p nan instify the taking of a 
corpse from the graYe_wheie-it Jwid ■ hnen Jaic^. We have bee n unwill- 
ifag to amrm tfa e_con3ction on account_of_our respect for the motives 
of tfae jefendant ; but we have felt it our duty t o do so rather than 
~"1^^3owna rule which might lessen th e only protection the law affords 
in reg Eatit-o t tW burr a rs~ o r ( liSsfS lIafs. The result is, the convtotipn 
win stand, and, as the judge states, the sentence should be a nominal 
fine of one shilling. Conviction affirmed.^ 

- See Rex v. Ogden, 6 C. & P. 631. —Ed. 



SECT. II.] KBGINA V. PEINCE. 275 



REGINA B. PRINCE. 

Court for Crown Cases Reserved. 1875. 

[Reported L. R. 2 C. C. 154.] 

Case stated by Denman, J. 

At the assizes for Surrey, held at Kingston-upon-Thames, on the 
24th of March last, Henry Prince was tried upon the charge of having 
unlawfully taken one Annie Phillips, an unmarried girl, being under 
the age of sixteen years, out of the possession and against the will of 
her father. The indictment was framed under s. 55 of 24 & 25 Vict. 
c. 100. 

He was found guilty. 

All the facts necessary to support a conviction existed, unless the 
following facts constituted a defence. The girl Annie Phillips, though 
proved by her father to be fourteen years old on the 6th of April fol- 
lowing, looked very much older than sixteen, and the jury found upon 
reasonable evidence that before the defendant took her away she had 
told him that she was eighteen, and that the defendant bona fide 
believed that statement, and that such belief was reasonable. 

If the Court should be of opinion that under these circumstances a 
conviction was right, the defendant was to appear for judgment at the 
next assizes for Surrey ; otherwise the conviction was to he quashed : 
see Reg. v. Robins, C. & K. 546, and Reg. v. Oiifier, 10 Cox, Cr. C. 
402. 

Brett, J.^ . . . It would seem that there must be proof to satisfy a 
jury ultimately that' there was a criminal mind, or inens rea, in every 
offence really charged as a crime. In some enactments, or common 
law maxims of crime, and therefore in the indictments charging the 
committal of those crimes, the name of the crime imports that a mens 
rea must be proved, as in murder, burglary, etc. In some the mens rea 
is contained in the specific enactments as to the intent which is made a 
part of the crime. In some the word " feloniouslj' " is used, and in 
such cases it has never been doubted but that a felonious mind must 
ultimately be found by the jury. In enactments in a similar form, but 
in which the prohibited acts are to be classed as a misdemeanor, the 
word " unlawfully " is used instead of the word " feloniously." What 
reason is there why, in like manner, a criminal mind, or mens rea, must 
not ultimately be found by the jury in order to justify a conviction, the 
distinction alwaj's being observed, that in some cases the proof of the 
committal of the acts may prima facie, either by reason of their own 
nature, or by reason of the form of the statute, import the proof of 
the mens rea f But even in those cases it is open to the prisoner to 
rebut the prima facie evidence, so that if, in the end, the jury are 
satisfied that there was no criminal mind, or mens rea, there cannot be 

1 Fut of this dissenting opinion is omitted. — Ed. 



276 EEGINA V. PRINCE. [OHAP. IV. 

a conviction in England for that which is bj' the law considered to be a 
crime. 

There are enactments which by their form seem to constitute the pro- 
hibited acts into crimes, and jet by virtue of which enactments the 
defendants charged with the committal of the prohibited acts have been 
convicted in the absence of the knowledge or intention supposed neces- 
sary to constitute a mens rea. Such are the cases of trespass in pursuit 
of game, or of piracy of literary or dramatic works, or of the statutes 
passed to protect the revenue. But,the decisions have been based upon 
the judicial declaration that the enactments do not constitute the pro- 
hibited acts into crime, or offences against the Crown, but only prohibit 
them for the purpose of protecting the individual interest of individual 
persons, or of the revenue. Thus, in Lee v. Simpson, 3 C. B. 871 ; 15 
L. J. (C. P.) 105, in an action for penalties for the representation of a 
dramatic piece, it was held that it was not necessary to shew that the de- 
fendant knowingly invaded the plaintiff's right. But the reason of the 
decision given by Wilde, C. J., 3 C. B. at p. 883. "is : "The object of 
the legislature was to protect authors against the piratical invasion 
of their rights. In the sense of having committed an offence against 
the Act, of having done a thing that is prohibited, the defendant is an 
offender. But the plaintiff's rights do not depend upon the innocence 
or guilt of the defendant." So the decision in Morden v. Porter, 7 C. 
B. (N. S.) 631 ; 29 L. J. (M. C.) 218, seems to be made to turn upon 
the view that the statute was passed in order to protect the individual 
property of the landlord in game reserved to him by his lease against 
that which is made a statutory trespass against him, although his land 
is in the occupation of his tenant. There are other, cases in which the 
ground of decision is that specific evidence of knowledge or intention 
need not be given, because the nature of the prohibited acts is such that, 
if done, they must draw with them the inference that they were done 
with the criminal mind or intent which is a part of every crime. Such 
is the case of the possession and distribution of obscene books. If a 
man possesses them, and distributes them, it is a necessary inference 
that he must have intended that their first effect must be that which is 
prohibited by statute, and that he cannot protect himself by shewing 
that his ultimate object or secondarj' intent was not immoral : Reg. v. 
Hieklin, Law Rep. 3 Q. B. 360. This and similar decisions go rather 
to shew what is mens rea, than to shew whether there can or cannot be 
conviction for crime proper without mens rea. 

As to the last question, it has become very necessarj' to examine the 
authorities. In Blackstone's Commentaries, by Stephen, 2d ed., vol. 
iv.. Book G, Of Crimes, p. 98. " And as a vicious will without a vicious 
act is no civil crime, so, on the other hand, an unwarrantable act 
without a vicious will is no crime at all. So that, to constitute a crime 
against human laws, there must be first a vicious will, and secondlv an 
unlawful act consequent upon such vicious will. Now there are three 
cases in which the will does not join with the act : 1. Where there is a 



SECT. II.] EEGINA. V. PRINCE. ^77 

defect of understanding, etc. ; 2. Where there is understanding and 
will sufHcient residing in the party, but not called forth and exerted at 
the time of the action done, which is the case of all offences committed 
by chance or ignorance. Here the will sits neuter, and neither concurs 
with the act nor disagrees to it." And at p. 105 : " Ignorance or mis- 
take is another defect of will, when a man, intending to do a lawful act, 
does that which is unlawful; for here, the deed and the will acting 
separately, there is not that conjunction between them which is neces- 
sary to form a criminal act. But this must be an ignorance or mistake 
in fact, and not an error in point of law. As if a man, intending to 
kill a thief or housebreaker in his own house, by mistake kills one of 
his family, this is no criminal action; but if a man thinks he has a right 
to kill a person excommunicated or outlawed wherever he meets him, 
and does so, this is wilful murder." In Fowler v. Padget, 7 T. E. 509, 
the jury found that they thought the intent of the plaintiff in going to 
London was laudable ; that he had no intent to defraud or delay his 
creditors, but that delaj- did actually happen to some creditors. Lord 
Ken3'on said: " Bankruptcj' is considered as a crime, and the bankrupt 
in the old laws is called an offender ; but it is a principle of natural 
justice and of our laws that actus non facit reurn nisi mens sit rea. 
The intent and the act must both concur to constitute the crime." 
And again : "I would adopt any construction of the statute that the 
words will bear, in order to avoid such monstrous consequences as 
would manifestly ensue from the construction contended for." 

In Hearne v. Garton, 2 E. & E. 16 ; 28 L. J. (M. G.) 216, the respond- 
ents were charged upon an information for having sent oil of vitriol by 
the Great Western Railway without marking or stating the nature of 
the goods. By 20 & 21 Vict. c. 43, s. 168, " every person who shall 
send or cause to be sent by the said railway any oil of vitriol, shall dis- 
tinctly mark or state the nature of such goods, etc., on pain of forfeit- 
ing, etc." By s. 206 such penalty is recoverable in a summary wa}' 
before justices, with power to imprison, etc. The respondents had in, 
fact sent oil of vitriol unmarked. But the justices found that there was 
no guilty knowledge, but, on the contrary, the respondents acted under 
the full belief that the goods were correctly described, and had pre- 
viously used all proper diligence to inform themselves of the fact.- 
They refused to convict. It must be observed that in that case, as in 
the present, the respondents did in fact the prohibited acts, and that 
in that case as in this, it was found, as the ultimate proof, that they 
were deceived into the belief of a different and non-criminal state of 
facts, and had used all proper diligence. The case is stronger, per- 
haps, tban the present by reason of the word " unlawfuUj' " being 
absent from that statute. The Court upheld the decision of the magis- 
trates, holding that the statute made the doing of the prohibited acts a 
crime, and therefore that there must be a criminal mind, which there 
was not. " As to the latter reason I think the justices were perfectly 
right: actus non facit reum nisi mens sit rea. The act with which the 



278 KBGINA V. PRINCE. [CHAP. IV. 

respondents were charged is an offence created by statute, and for 
which the person committing it is liable to a penalty or to imprison- 
ment ; not only was there no proof of guiltj- knowledge on the part of 
the respondents, but the presumption of a guilty knowledge on their part, 
if any could be raised, was rebutted by the proof that a fraud had been 
practised on them. I am inclined to think they were civilly liable : " 
Lord Campbell, C. J. "I was inclined to think at first, tliat the pro- 
vision was merely protective ; but if it create a criminal offence, which 
I am not prepared to denj-, then the mei'e sending bj- the respondents, 
without a guilty knowledge on their part, would not render them crimi- 
nally liable, although, as the}' took Nicholas's word for the contents of 
the parcel, they would be civilly liable : " Erle, J. 

In Taylor v. Newman, 4 B. & S. 89 ; 32 L. J. (M. C.) 186, the infor- 
mation was under 24 & 25 Vict. c. 96, s. 23: "Whosoever shall un- 
lawfully and wilfully kill, etc., any pigeon, etc." The appellant shot 
pigeons on his farm belonging to a neighbor. The justices convicted 
on the ground that the appellant was not justified by law in killing the 
pigeons, and, therefore, that the killing was unlawful. In other words 
they held that the only meaning of " unlawfully' " in the statute was 
*' without legal justification." The Court set aside the conviction. 
' ' I tliink that the statute was not intended to apply to a case in which 
there was no guiltj^ mind, and where the act was done bj' a person 
under the honest belief that he was exercising a right." Mellor, J. 

In Buckmaster v. Reynolds, 13 C. B. (N. S.) 62, an information was 
laid for unlawfully, by a certain contrivance, attempting to obstruct or 
prevent the purpose.s of aji election at a vestrj'. The evidence 'was 
tliat the defendant did obstruct the election because he forced himself 
and others into the room before eight o'clock, believing that eight o'clock 
was passed. The question asked was, wliether an intentional obstruc- 
tion by actual violence is an offence, etc. This question the Court 
answered in the aflflrmative, so that there, as here, the defendant had 
done the prohibited acts. But Erle, J., continued : " I accompany this 
statement (i. e. the answer to the question) by a statement that upon 
the facts set forth I am unable to see that the magistrate has come to 
a wrong conclusion. A man cannot be said to be guilty of a delict 
unless to some extent his mind goes with the act. Here it seems that 
the respondent acted in the belief that he had a right to enter the room, 
and that he had no intention to do a wrongful act." 

In Reg. V. Hibbert, Law Eep. 1 C. C. 184, the prisoner was indicted 
under the section now in question. The girl, who lived with her father 
and mother, left her home in company with another girl to go to a 
Sunday school. The prisoner met the two girls and induced them to 
go to Manchester. At Manchester he took them to a public house and 
there seduced the girl in question, who was under sixteen. The prisoner 
made no inquiry and did not know wlio the girl was, or whether she 
tiad a father or mother living or not, but he had no reason to, .ind did 
not believe that she was a girl of the town. The jurj' found the prisoner 



SECT. II.] EEGINA V. PEINCE. 279 

guiltj-, and Lush, J., reserved the case. In the Court of Criminal 
Appeal, BoviLLL, C. J., Channell and Pigott, BB., Byles and Lush, JJ., 
quashed the conviction. Bovill, C. J. : " In the present case there is 
no statement of any finding of fact that the prisoner knew, or had 
reason to believe that the girl was under the lawful care or charge of 
her father or mother, or any other person. In the absence of any find- 
ing of fact on this point the conviction cannot be supported." This 
case was founded on Eeg. v. Green, 3 F. & F. 274, before Martin, B. 
The girl was under fourteen, and lived with her father, a fisherman, at 
Southend. The prisoners saw her in the street by herself and induced 
her to go with them. They took her to a lonely house, and there Green 
had criminal intercourse with her. Martin, B., directed an acquittal : 
" There must, he said, be a taking out of the possession of the father. 
Here the prisoners picked up the girl in the street, and for anything 
that appeared, they might not have known that the girl had a father. 
The .girl was not taken out of the possession of any one. The prison- 
ers, no doubt, had done a very immoral act, but the question was whether 
they had committed an illegal act. The criminal law ought not to be 
strained to meet a case which did not come within it. The act of the 
prisoners was scandalous, but it was not any legal offence." 

In each of these cases the girl was surelj- in the legal possession of 
her father. The fact of her being in the street at the time could not 
possibly prevent her from being in the legal possession of her father. 
Everything, therefore, prohibited was done by the prisoner in fact. But - 
in each case the ig norance of facts wag helH tr> p ^pvpnt thejcase-fiuyn 
B^ing the crime t o be punished. 

In 'Uyg. v. linckler, 1 F. & F. 513, in a case under this section, 
CocKBUKN, C. J., charged the jury thus: " It was clear the prisoner 
had no right to act as he had done in taking the child out of Mrs. 
Barnes's custody. But inasmuch as no improper motive was suggested 
on the part pf the prosecution, it might ver}' well be concluded that the 
prisoner wished the child to live with him, and that he meant to dis- 
charge the promise which he alleged he had made to her father, and 
that he did not suppose he was breaking the law when he took the child 
away. This being a criminal prosecution, if the jury should take this 
view of the case, and be of opinion that the prisoner honestly believed 
that he had a right to the custodj' of the child, then, although the prisoner 
was not legally justified, he would be entitled to an acquittal." The 
jury found the prisoner not guilty. 

In Reg. V. Sleep, 8 Cox, Cr. C. 472, the prisoner had possession of 
government stores, some of which were marked with the broad arrow. 
The jury, in answer to the question whether the prisoner knew that the 
copper, or any part of it was marked, answered, " We have not suffi- 
cient evidence before us to shew that he knew it." The Court of 
Criminal Appeal held that the prisoner could not be convicted. Cock- 
burn, C. J. : A.ctus non facit reum nisi mens sit rea is the foundation' 
of all criminal procedure. The ordinary principle that there must be a 



280 EEGINA V. PRINCE. [CHAP. IV. 

guilty mind to constitute a guiltj^ act applies to this case, and must be 
imported into this statute, as it was held in Reg. v. Cohen, 8 Cox, Cr. 
C. 41, where this conclusion of the law was stated by Hill, J., with his 
usual clearness and power. It is true that the statute says nothing 
about knowledge, but this must be imported into the statute." Pol- 
lock, C. B., Martin, B., Crompton and Willes, JJ. , agreed. 

In the cases of Reg. v. Robins, 1 C. & K. 456, and Reg. v. Olifier, 10 
Cox, Cr. C. 402, there was hardlj' such evidence as was given in this 
case, as to the prisoner being deceived as to the age of the girl, and 
having reasonable grounds to believe the deception, and there cer- 
tainly were no findings by the jury equivalent to the findings in this 
case. 

In Reg. V. Forbes and Webb, 10 Cox, Cr. C. 362, although the 
policeman was in plain clothes, the prisoners certainly had strong 
ground to suspect, if not to believe, that he was a policeman ; for the 
case states that they repeatedly called out to rescue the boy and pitch 
into the constable. 

Upon all of the cases I think it is prgvgd that t|ier e can be no con ;^ 
viction^or crime in ii^nglana in_tHelAbs cncc of a emoinalmind^o^.... 



mens rea. 

Then comes the question, what is the true .meaning of the phrase? 

I do not doubt that it exists where the prisoner knowingly does acts 
which would constitute a crime if the result were as he anticipated, but 
In which the result may not improbably end by bringing the offence 
within a more serious class of crime. As if a man strikes with a dan- 
gerous weapon, with intent to do grievous bodily harm, and kills, the 
result makes the crime murder. The prisoner has run the risk. So, if 
a prisoner do the prohibited acts, without caring to consider what the 
truth is as to facts — as if a prisoner were to abduct a girl under sixteen 
without caring to consider whether she was in truth under sixteen — he 
runs the risk. So if he without abduction defiles a girl w^ho is in fact 
under ten }-ears old, with a belief that she is between ten and twelve. 
If the facts were as he believed, he would be committing the lesser crime. 
Then he runs the risk of his crime resulting in the greater crime. It is 
clear that ignorance of the law does not excuse. It seems to me to fol- 
low that the maxim as to -mens rea applies whenever the facts which 
are present to the prisoner's mind, and which he has reasonable ground 
to believe, and does believe to be the facts, would, if true, make his 
acts no criminal offence at all. 

It may be true to sa}' that the meaning of the word " unlawfully " is 
that the prohibited acts be done without justification or excuse ; I. of 
course, agree that if there he a legal justification there can be no crime ; 
but T c ome to the cor i('1"°'"" thnt a. ^mistake of facts, on reaso nable 
grounds^ tothe extent that if the facts were as believed, the acts ofthe 



prisoner would make him gui lty of no criminal offemic ^at all, is_ an 
e xcuse, and th^t^ such exciise_isrTiapIi31n~every c riminal chaige.and 
every criminal enactment in England. I agree with Lord Kentok 



SECT. II.] KEGINA V. PRINCE. 281 

that " such is our law," and with Cockburn, C. J., that " such is the 
foundation of all criminal procedure." 

Bkamwell, B.' The question in this case depends on the construc- 
tion of the statute under which the prisoner is indicted. That enacts 
that " whosoever shall unlawfully take anj' unmarried girl under the 
age of sixteen out of the possession and' against the will of her father 
or mother, or any other person having the lawful care or charge of her, 
shall be guilty of a misdemeanor." Now the word "unlawfully " means 
"not lawfully," "otherwise than lawfully," "without lawful cause," 
such as would exist, for instance, on a taking by a police officer on a 
charge of felony, or a taking by a father of his child from his school. 
The statute, therefore, may be read thus : " Whosoever shall take, etc., 
without lawful cause." Now the prisoner had no such cause, and con- 
sequently, except in so far as it helps the construction of the statute, 
the word " unlawfully" may in the present case be left out, and then 
the question is, has the prisoner taken an unmarried girl under the age 
of sixteen out of the possession of and against the will of her father? In 
fact, he has ; but it is said not within the meaning of the statute, and 
that that must be read as though the word " knowingly," or some equiv- 
alent word, was in ; and the reason given is, that as a rule the mens 
red is necessary to make any act a crime or offence, and that if the facts 
necessary to constitute an offence are not known to the alleged offender, 
there can be no mens rea. I have used the word "knowingly ; " but it 
will, perhaps, be said that here the prisoner not only did not do the act 
knowingly, but knew, as he would have said, or believed, that the fact 
was otherwise than such as would have made his act a crime ; that here 
the prisoner did not say to himself, " I do not know how the fact is, 
whether she is under sixteen or not, and will take the chance," but 
acted on the reasonable belief that she was over sixteen ; and that 
though if he had done what he did, knowing or believing neither waj', 
but hazarding it, there would be a mens rea, there is not one when, as 
he believes, he knows that she is over sixteen. 

It is impossible to suppose that, to bring the case within the statute, 
a person taking a girl out of her father's possession against his will is 
guilty of no ofEence unless he, the taker, knows she is under sixteen ; 
that he would not be guilty if the jury were of opinion he knew neither 
one way nor the other. Let it be, then, that the question is whether 
he is guilty where he knows, as he thinks, that she is over sixteen. 
This introduces the necessitj' for reading the statute with some strange 
words introduced; as thus: "Whosoever shall take any unmarried 
girl, being under the age of sixteen, and not believing her to be over 
the age of sixteen, out of the possession," etc. Those words are not 

1 In this opinion Kellt, C. B., Cleasby, Pollock and Amphlbtt, BB., and 
Gbove, Quaiw, and Denman, .TJ , concurred. Blackburn, J., also delivered an 
opinion supporting the conviction, in which Cockburn, C. J., Mellok, Lush, Quain, 
Denman, Archibald, Field, and Lindley, JJ., and Pollock, i B., concurred. 
— Ed. 



282 REGINA V. PKINCE. i[CHAP. IV. 

there, and the questioa is, whether we are bound to construe the stat- 
ute as though they were, on account of the rule that the mens rea is 
necessary' to make an act a crime. I am of opinion that we are not, 
nor as though the word " Icnowingly" was there, and for the following 
reasons : The act fo r^'"'^'^g1 'g wrnno ; in itself, if wit.l^nnf. jawfnl cause ^ 
I do not say illegal, but wrong. I have not lost sight of this, that 
though the statute probably principally aims at seduction for carnal 
purposes, the taking may be by a female with a good motive. Never- 
theless, though there may be such cases, which are not immoral in one 
sense, I say that the act forbidden is wrong. 

Let us remember what is the case supposed by the statute. It sup- 
poses that there is a girl — it does not say a woman, but a girl — 
something between a child and a woman ; it supposes she is in the 
possession of her father or mother, or other person having lawful care 
or charge of her ; and it supposes there is a taking, and that that 
taking is against the will of the person in whose possession she is. 
It is, then, a taking of a girl, in the possession of some one, against 
his will. I sa}' that done without lawful cause is >wrong, and that the 
legislature meant it should be at the risk of the taker whether or no 
she was under sixteen. I do not say that taking a woman of fifty from 
her brother's or even fathei"'s house is wrong. She is at an age when 
she has a right to choose for herself; she is not a girl, nor of such 
tender age that she can be said to be in the possession of or under the 
care or charge of anyone. I am asked where I draw the line; I answer 
at when the female is no longer a girl in anyone's possession. 

But what the statute contemplates, and what I say is wrong, is the 
taking of a female of such tender years that she is properly called a 
girl, can be said to be in another's possession, and in that other's care 
or charge. No argument is necessary to prove this ; it is enough to 
state the case. Tho locrig^j^tnro ]<aa pna-^t-od that if flnynn e cjcpp th is 
WTQ i L g aotj ho docf it a t^t^erisk of her tut' sijig out to bej mdgr sixteen. 
Phis opinion gives full scop g " la the Tt ot.Uiiie ol Lb<j Jjhi; u ' /(ja, r^f the 
taker belieVed he had the father's consent, though wrongly, he would 
have no mens rea / so if he did not know she was in anyone's posses- 
sion, nor in the care or charge of anyone. In those cases he would not 
know he was doing the act forbidden by the statute — an act which, if 
he knew that she was in possession and in care or charge of anyone, 
he would know was a crime or not, according as she was under sixteen 
or not. He would not know he was doing an act wrong in itself, 
whatever was his intention, if done without lawful cause. 

I In addition to these considerations, one may add that the statute 

Idoes use the word " unlawfully," and does not use the words " know- 
ingly " or " not believing to the contrary." If the question was whether 

I his act was unlawful, there would be no difficultj', as it clearly was not 

lawful. 

This view of the section, to my mind, is much strengthened by a 

reference to other sections of the same statute. Sect. 60 makes it 



SECT. II.] KEGINA V. PRINCE. 283 

a felony to unlawfully and carnal I3' know a girl under the age of ten. 
Sect. 51 enacts when she is above ten and under twelve to unlawfully 
and carnally know her is a misdemeanor. Can it be supposed that in 
the former case a person indicted might claim to be acquitted on the 
ground that he had believed the girl was over ten though under twelve, 
and so that he had only committed a misdemeanor; or that he believed 
her over twelve, and so had committed no offence at all ; or that in a 
case under s. 51 he could claim to be acquitted, because he believed her 
over twelve ? In both cases thf' i"t; h intrinrifitily irrTT Pg': for t he stat- 
ute say i j if *< uulawf uU j ^ j* ^"^' '^'^^ ^"^ '^otie with a mens rea is un- 
lawfully and carnally knowing the girl, and the man doing that act does 
it ai the risk of the child being under the statutory age. It would be 
mischievous to hold otherwise. So s. 56, by which, whoever shall take 
away any child under fourteen with intent to deprive parent or guardian 
of the possession of the child, or with intent to steal any article upon 
such child, shall be guilty of felonj'. Could a prisoner say, " I did 
take away the child to steal its clothes, but I believed it to be over 
fourteen ? " If not, then neither could he say, " I did take the child 
with intent to deprive the paretit of its possession, and I believed it 
over fourteen." Because if words to tiiat effect cannot be introduced 
into the statute where the intent is to steal the clothes, neither can they 
where the intent is to take the child out of the possession of the parent. 
But if those words cannot be introduced in s. 56, why can they be in 
s. 55? 

The same principle applies in other cases. A man was held liable for 
assaulting a police officer in the execution of his duty, though he did not 
know he was a police officer. (10 Cox, Cr. C. 362.) Why? because the 
act was wrong in itself. So, also, in the case of burglary, could a person 
charged claim an acquittal on the ground that he believed it was past 
six when he entered, or in housebreaking, that he did not know the 
place broken into was a house? Take also the case of libel, published 
when the publisher thought the occasion privileged, or that he had a 
defence under Lord Campbell's Act, but was wrong; he could not be 
entitled to be acquitted because there was no mens rea. Why ? because 
the act of publishing written defamation is wrong where there is no' 
lawful cause. 

As to the case of the marine stores, it was held properly that there 
was no Tnens rea where the person charged with the possession of 
naval stores with the Admiralty mark did not know the stores he had 
bore the mark : Reg. v. Sleep, 8 Cox, Cr. C. 472 ; because there is 
nothing prima facie wrong 01 immoral in having naval stores unless 
thej' are so marked. But suppose his servant had told him that there 
was a mark, and he had said he would chance whether or not it was the 
Admiralty mark? So in the case of the carrier with game in his pos- 
session ; unless he knew he had it, there would be nothing done or 
permitted by him, no intentional act or omission. So of the vitriol 



284 REGINA. V. PEINCE. [CHAP. IV. 

senders ; there was nothing wrong in sending such packages as were 
sent unless they contained vitriol. 

Further, there have been four decisions on this statute in favour of 
the construction I contend for. I say it is a question of construction 
of this particular statute in doubt, bringing thereto the common law 
doctrine of mens rea being a necessary ingredient of crime. It seems 
to me i mpos s ible tO -say that where--a._p£iison_lafeesT, girl out ^ Tjei^ 
fiber's possession, not knowing whether she is or is not under sixteen, 
thart- hc is no t- guilty ; and equall x:iJaf > a CTrt1 iito When he"~'bei4«Kea,,^t 
errone ousl}', that she is old enough fo r him to"do a wrong act with 
saf^W;__I think the conviction shoiald be aflSrmed. 

Denman, J. I agree in the judgment of my Brothers Beamtvbll and 
Blackbukn, and I wish what I add to be understood as supplementary 
to them. The defendant was indicted under the 24 & 25 Vict c. 100, 
s. 55, which enacts that " whosoever shall unlawfully take, or cause to 
be taken, any unmarried girl, being under the age of sixteen years, out 
of the possession and against the wish of her father or mother, or of 
any other person having the lawful care or charge of her, shall be guilty 
of a misdemeanor." 

I cannot hold that the word " unlawfully " is an immaterial word in 
an indictment framed upon this clause. I think that it must be taken 
to have a meaning, and an important meaning, and to be capable of 
being supported or negatived by evidence upon the trial: see Reg. v. 
Turner, 2 Moo. Cr. C. 41 ; Reg. v. Ryan, 2 Hawk, P. C. C. 25, § 96. 

In the present case the jury found that the defendant had done everj'- 
thing required to bring himself within the clause as a misdemeanant, 
unless the fact that he bona fide and reasonably believed the girl taken 
by him to be eighteen years old constituted a defence. That is in 
other words, unless such bona fide and reasonable belief prevented 
them from saying that the defendant in what he did acted " unlawfully " 
within the meaning of the clause. The qn°gj^i£Mi,_LhfirpfnrP| in whrthrr, 
upon this finding of the_jur3', t ho defendant did unlawfuH y^jothe things 
-w hich th n y fo n m-Hrinr to h ^v" dnn f' "" ~ 

The solution of this question depends upon the meaning of the word 
" unlawfully " in s. 55. If it means " with a knowledge or belief that 
every single thing mentioned in the section existed at the moment of 
the taking," undoubtedly the defendant would be entitled to an acquittal, 
because he did not believe that a girl of under sixteen was being takeu 
by him at all. If it only means " without lawful excuse " or justifica- 
tion, then a further question arises, viz., whether the defendant had any 
lawful excuse or justification for doing all the acts mentioned in the 
clause as constituting the offence, by reason, merely, that he bona fide 
and reasonably believed the girl to be older than the age limited by the 
clause. Bearing in mind the previous enactments relating to the abduc- 
tion of girls under sixteen, 4 & 5 Phil. & Mary, c. 8, s. 2, and the gen- 
eral course of the decisions upon those enactments, and upon the present 
statute, and looking at the mischief intended to be guarded against. 



SECT., II.] EEGINA V. PEINCE. 285 

it appears to me reasonably clear that the word ' ' ii^lawfoHj',''_^in the 
true gpnopj whicb- it wnn na a dj ia fnll y satisfi ed hy holding tha"t, i t jfl 
equivalent to the words " ^dthoutlaw &iJ-&KCUse .'' using those words aa 
equivalent to " without such an excuse as being proved would be a 
complete legal justification for the act, even where all the facts con- 
stituting the oiTence exist." 

Cases maj' easily be suggested where such a defence might be made 
out, as, for instance, if it were proved that he had the authority of a 
Court of competent jurisdiction, or of some legal warrant, or that he 
acted to prevent some illegal violence not justified by the relation of 
parent and child, or school-mistress, or other custodian, and requiring 
forcible interference by way of protection. 

In the present case the jury find that the defendant believed the girl 
to be eighteen years of age ; even if shqjia.d bepn of that age ^he wo g 
have been in the la wful care and""oEar^e o f her~jaiher^^as-itSI!gnardian 
"byTiature: see CorTlitt. 88, b, n. 12, 1 9th ' ed. , recognized in Reg. v. 
IHow^, 3~iE. & E. 332. Her father had a right to her personal custody 
up to the age of twenty-one, and to appoint a guardian by deed or will, 
whose right to her personal custody would have extended up to the 
same age. Th w belief ^h f\, i «be w as-eighte cn wou ld- be no justi ficatien 
J(2_tll£-d«feBdanwbr taSing beg-otrTo!' his pogseasi gn, and again^ st-bis 
^^rill. By taking hCTT'Svenwith her own consent, he must at least have 
been guilty of aiding and abetting her in doing an unlawful act, viz., in 
escaping against the will of her natural guardian from his lawful care 
and charge. This, in my opinion, leaves him whollj' without lawful 
excuse or justification for the act he did, even though he believed that 
the girl was eighteen, and therefore unable to allege that what he has 
done was not unlawfullj- done, within the meaning of the clause. In 
other words, having knowingly done a wrongful act, viz., in taking the 
girl awaj- from the lawful possession of her father against his will, and 
in violation of his rights as guardian b}'^ nature, he cannot be li,eard to 
say that he thought the girl was of an age beyond that limited by the 
statute for the offence charged against him. He had wrongfully done 
the very thing contemplated bj' the legislature : He had wrongfulh' and , 
knowingly violated the father's rights against the father's will. And 
he cannot set up a legal defence by merely proving that he thought he 
was committing a different kind of wrong from that which in fact he 
was committing. Conviction affirmed. 



286 KEYNOLDS V. UNITED STATES. [CHAP. IV. 



REYNOLDS v. UNITED STATES. 

Supreme Codbt of the United States. 1878. 

[Reported 98 United States, 145.] 

Error to the Supreme Court of the Territory of Utah. 

This is au iudictinent found in the District Court for the third judicial 
district of the Territory of Utah, charging George Reynolds with bigamy 
in violation of sect. 5352 of the Revised Statutes.' 

Mr. Chief Justice Waite delivered the opinion of the court. 

In our opinion, the statute immediately under consideration is within 
the legislative power of Congress. It is constitutional and valid as pre- 
scribing a rule of action for all those residing in the Territories, and in 
places over which the United States have exclusive control. This being 
so, the only question wh igh remains is, whether those who make polyg- 
amy a part of their religion are excepted from the operation o f the 
~St3Xute. if they are, then those who do not make pol3gamj' a part of 
their" religious belief may be found guilt}' and punished, while those 
who do, must be acquitted and go free. This would be introducing a 
new element into criminal law. T.a wfj gjre madp. for the-ggvernmenli of 
actions, and while they cannot interfe re with mere religious belief and 
opinions, Ikey Uiay vviLh pmiJLlces^ Suppose one believed that human. 
"HiKJl'ihces were a necessary part of religious worship, would it be seri- 
ouslj' contended that the civil government under which he lived could 
not interfere to prevent a sacrifice? Or if a wife religiously believed it 
was her duty to burn herself upon the funeral pile of her dead husband, 
would it be beyond the power of the civil government to prevent her 
carrying her belief into practice ? 

So here, as a law of the organization of society under the exclusive 
dominion of the United States, it is provided that plural marriages shall 
not be allowed. Can a man excuse his practices to the contrary because 
of his religious belief? T o permi t this would be to make the professed 
doctrines of religious belief superior tn the law of the land, and in etfect 
to permit e very citizen to become a law unto him self. (Tovernment 
coii'ia exist only in name under such circumstances. 

A criminal intent is generally an element of crime, but everj' man is 
presumed to intend the necessary and legitimate consequences of what 
he knowingly does. Here the accused knew he had been once married^ 
and that his first wife was living. He also knew that his second mar- 

1 Part only of the case, relating to the question of intent, is here given. 



SECT. II.] UNITED STATES V. HARMON. 287 

riage was forbidden by law. When, therefore, he married the second 
time, he is presumed to have intended to break the law. And the 
breaking of the law is the crime. Ever}- act necessary to constitute 
the crime was knowingly done, and the crime was therefore knowingly 
committed. Ignorance of a fact may sometimes be taken as evidence 
of a want o i criminal intent, but not ignorance of the law. The only 
defence of the accused in this case is his belief that the law ought not 
to have been enacted. It matters not that his belief was a part of his 
professed religion ; it was still belief, and belief only.* 



UNITED STATES v. HAEMON. 
United States District Court, Dist. of Kansas. 1891. 

[Reported 45 Federal Reporter, 414.] 

Philips, 3.'' Reduced to its actual essence, the ultimate position of 
defendant is this : That altliough the language emploj'ed in the given 
article may be obscene, as heretofore defined, yet as it was a necessarj' 
vehicle to convey to the popular mind the aggravation of the abuses in 
sexual commerce inveighed against, and the object of the publisher 
being to correct the evil and thereby alleviate human condition, the 
author should be deemed a public benefactor, rather than a malefactor. 
In short, the proposition is that a man can do no public wrong who 
believes that what he does is for the ultimate pubhc good. The under- 
lying vice of all this character of argument is that it leaves out of view 
the existence of the social compact, and the idea of government by law. 
If the end sought justifies the means, and there were no arbiter but the 
individual conscience of the actor to determine the fact whether the 
means are justifiable, homicide, infanticide, pillage, and incontinence 
might run riot ; and it is not extravagant to predict that the success of 
such philosophy would remit us to that barbaric condition where 

" No common weal the human tribe allied, 
Bound by no law, by no fixed morals tied. 
Each snatched the booty which his fortune brought. 
And wise in instinct each his welfare sought." 

Guiteau stoutly maintained to the end his sanity, and that he felt he 
had a patriotic mission to fulfil in taking off President Garfield, to the 
salvation o^a political party. The Hindu mother cast her babe to the 

1 Ace. State v. "White, 64 N. H. 48, 5 Atl. 828. — Ed. 

2 Part of- the opinion only is given. The case was an indictment for depositing an 
obscene publication in the United States post-ofiSce in violation of the provisions of 
section 3893 of the Revised Statutes of the United States. The defendant attempted 
to justify his act on the ground that he was actuated solely by the desire to improve 
sexual habits, and thus benefit the human race. — Ed. 



288 ANONYMOUS. [CHAP. IV. 

advouring Ganges to appease the gods. But civilized societj' says both 
are murderers. The Mormon contends that his religion teaches polyg- 
amy ; and there is a school of so-called " modern thinkers" who would 
abolish monogamy, and efect on" the ruins the flagrant doctrine of 
promiscuitj^ under the disguise of the affinities. All these claim liberty 
of conscience and thought as the basis of their dogmas/ and the pro 
bono publico as the strength of their claim to indulgence. The law 
against adultery itself would lie dormant if the libertine could get the 
courts to declare and the jury in obedience thereto to say that if he 
invaded the sanctuary of conjugal life under the belief that the improve- 
ment of the human race demanded it he was not amenable to the statute. 
Society is organized on the theory, born of the necessities of human 
well-being, that each member yields up something of his natural privi- 
leges, predilections, and indulgences for the good of the composite 
community ; and he consents to all the motto implies, salus populi 
sitprema est lex; and, as no government can exist without law, the law- 
making power, within the limits of constitutional authority-, must be 
recognized as the body to prescribe what is right and prohibit what is 
wrong. It is the very incarnation of the spirit of anarchy for a citizen 
to proclaim that like the heathen he is a law unto himself. The respon- 
sibility for this statute rests upon Congress. The duty of the courts is 
imperative to enforce it while it stands. 



ANONYMOUS. 

Eepokteks' Note. 1498. 

[Reported Year-Book, 13 Hen. VII. 14, pi. 5.] 

, Hussey said that a question had been put to him, which was this: 
A clerk of a church being in a chamber struck another with the kej-s 
of the church ; which with the force of the blow flew out of his hand 
and through a window, and put out the eye of a woman. Tl^^^ajion 
wa s, whether it should be called maihem or not. And It seems that it 
wa|8^^ because h° >«^ <■ v-HTntpnt at. HTpjTPgimving ; but it should be well 
considered in assessing the damages. 



SECT. II.J EEGINA V. BRUCE. 289 



REX V. BLACKHAM. 

Ceown Case Reserved. 1787. 

[Reported 2 East, Pleas of the Crown, 7U.] 

Blackham assaulted a woman with intent to commit a rape, and she 
without anj' demand from him ofiered him monej-, which the prisoner 
tooli and put into his pocket, but continued to treat her with violence 
to effect his original purpose till he was interrupted bj- the approach of 
another person. Th is was holden to be ro bbery b y a. (jr^nsi rlprahlA 
majority of the judges ; J oi- the ffipmanTfrom violence and terror occa- 
sioned Vy the prisoner's behavior, and to redeem her chastity, _o£Ger£d_ 
the money, which it was clear slie wo u ld n^i h.i.in tti uBn yoluntari lv ; 
and the prisoner, py taking it, d erived that advan tap ;e to himsfilff rom 
his felonious conduct ; luough his original intent were to commit a rape. 



REGINA V. BRUCE. 
Central Criminal Court. 1847. 

[Reported 2 Cox C. C. 262.] 

The prisoner -was indicted for manslaughter, under the circumstances 
detailed by one of the witnesses. He said the prisoner came into his 
master's shop, and pulled him bj' the hair off a cask where he was sit- 
ting, and shoved him to the door, and from the door back to the counter. 
That the prisoner then put his arm round his neck and spun liim round, 
and thej- caflie together out of the shop; the prisoner kept "hold of 
the witness when they were outside, and kept spinning him round ; the 
latter broke away from him, and, in consequence and at the moment of 
his so doing, he (the prisoner) reeled out into the road ajid knocked 
against a woman who was passing and knocked her down. The prisoner 
was verj- drunk, and staggered as he walked." 

The woman so knocked down died shortl}' afterwards of the injuriesk 
she had received, and it was for having caused her death that the pris- ' 
oner was indicted. 

Mr. Justice Erlb inquired of the witness (a young lad) whether he 
resisted the prisoner during the transaction. The lad answered that he 
did not; he thought ^g prisoner was only playing with_ ^ h im, and was 
sure that it was intended as a joke throughout! 

Erle, J. (to the jury). I think, upon this evidence, you must acquit 
the prisoner. Where_the_deatLJi£-JM«-^ere©jMS-T;ansEa''¥ylhe act of 
another, while the latter is in pursuit of any unlawfu F object, the p erson 
so killing is guiltTTrf manslaughter, althoua;h lic jiad no i ntention what- 
ever of injuring'hfm who was tUe victim of tiis conduct. Here, however, 



290 EEGINA V. FEANKLIN. fCHAP. lY. 

there was nothing unlawful in what the prisoner did to this lad, and 
which led to the death of the woman. Had his treatment of the boy 
been against the will of the latter, the prisoner would have been com- 
mitting an assault — an unlawful act — which would have rendered 
him amenable to the law for any consequences resulting from it ; but 

. as eve i-y thing that was done wa s_with the witness's consentjJheifijEEasL. 
no assault , and consequently noiJle^ iHtv: — itris7iSTI[e"^eof the law, 

— aH-aCCi9ent, and nothing more. 



REGINA V. FRANKLIN. 

Sussex Assizes. 1883. 

{Reported 15 Cox C.C. 16.3.] 

Charles Harris Franklin was indicted before Field, J., at Lewes, 
for the manslaughter of Craven Patrick Trenchard. 

The facts were as follows : 

On the morning of the 25th day of July, 1882, the deceased was bath- 
ing in the sea from the "West Pier, at Brighton, and swimming in the 
deep water around it. The prisoner took up a good sized box from 
the refreshment stall on the pier and wantonly threw it into the sea. 
Unfortunately the box struck the deceased, C. P. Trenchard, who was 
at that moment swimming underneath, and so caused his death. 

Gore, for the prosecution, urged that it would, apart from the ques- 
tion of negligence, be sufBcient to constitute the offence of manslaughter, 
that the act done by the prisoner was an unlawful act, which the facts 
clearly showed it to be, and cited the case of Rex v. Fenton, 1 Lewin's 
Cr. Cas. 179. This case is referred to in 1 Russell on Crimes, 638 : " If^ 
death _ensHea in consequence^^a wrongful act, which the party who 
commits it can neither justify nor excuse, it iFmanslaughter. An indict- 
mern; chargedTEat there was^a~icaiKI3ing in a certain coal mine, and 
that the prisoners, by throwing large stones down the mine, broke the 
scaffolding, and that in consequence of the scaffolding being so broken 
'a corf in which the deceased was descending the mine struck against a 
beam on which the scaffolding had been supported, and bj^ such striking 
the corf was overturned and the deceased precipitated into the mine 
and killed. Tindal, C. J., said : If death ensues as the consequence of a 
wrongful act, which the party who commits it can neither justify nor 
excuse, it is not accidental death, but manslaughter. If the wrongful 
act was done under circumstances which show an intent to kill or do 
any serious injury in the particular ease, or any general malice, the 
offence becomes that of murder. In the present instance the act was 
one of mere wantonness and sport, but still the act was wrongful, it was 
a trespass. The only question, therefore, is, whether the death of the 



SECT. n.J COMMONWEALTH V. ADAMS. 291 

party is to be fairly and reasonably considered as a consequence of 
such wrongful act. If it followed from such wrongful act, as an effect 
from a cause, the offence is manslaughter ; if it is altogether unconnected 
with it, it is accidental death." ' 

Field, J. This is a question of great importance, for if I must follow 
the ruling of the very learned judge in Reg. v. Fenton (ubi supra) it will 
'be necessary to go into' the question whether the prisoner was guilty of 
negligence. I will consult my brother Mathew upon the point. 

Field, J., after a short interval, returned into court and said ; Xam 
of opi nion that the .e ase must go to the jury upon the broad ground of 
negligence, and not upon'the narrow ground proposed by the learned 
counsel, oecause it seems to me — and I may say that in this view my 
brother Mathew agrees — that the mere fact of a civil wrong committed 
by one person against another ought not to be used as an incident which 
is a necessary step in a criminal case. I have a great abhorrence of 
constructive crime. We do not think the case cited by the counsel for 
the prosecution is binding upon us in the facts of this case, and, there- 
fore, the .civ il wrong aga instJAe refreshment-stall kp.pppr ja immaterial 
to this charge of ma nslaughte r^^ I do not think that the facts "of this 
case bring it clearly withm the principle laid down bj' Tindal, C. J., in 
Reg. V. Fenton. If I thought this case was in principle like that case 
I would, if requested, state a case for the opinion of the Court of Crimi- 
nal Appeal. But I do not think so. 

It was not disputed that the prisoner threw the box over the pier, 
that the box fell upon the boy, and the death of the boy was caused by 
the box falling upon him. 

Gill, for the prisoner, relied upon the point that there was not proved 
such negligence as was criminal negligence on the part of the prisoner. 

Field, J., in summing up the case to the jury, went carefully through 
the evidence, pointing out how the facts as admitted and proved affected 
the prisoner upon the legal question as he had explained it to them. 

The jury returned a verdict of guilty of manslaughter. Guilty^ 

The prisoner was sentenced to two months' imprisonment 



COMMONWEALTH v. ADAMS. 
SuPEEME Judicial Court op Massachusetts. 1873. 

[Reported 114 Massachusetts, 323.] 

Complaint for assault and battery. 

At the trial in the Superior Court, before Bacon, J., it appeared that 
the defendant was driving in a sleigh down Beacon Street, and was 
approaching the intersection of Charles Street, when a team occupied 
the crossing. The defendant endeavored to pass the team while driving 



292 COMMONWEALTH V. ADAMS. [CHAP. IV. 

at a rate prohibited by an ordinance of the city of Boston. In so doing, 
he ran against and knocked down a boy who was crossing Beacon Street. 
No special intent on tlie part of the defendant to injure the boy was 
shown. The defendant had pleaded guilty to a complaint for fast driv- 
ing, in violation of the city orduuiuce. The jCam^onwealthasked for a 
verdict, upon the ground t.hafjjip intent, to viol atetEe city oj; ^ance 
TnTp pltpfrFTip inten t, np.ce asaryto s nstflj" tlie cliflrorpj-vfj^aiilf, ariHyiat- 
tery;_jriie court so ruled, and thereupon the defendant submitte3~E3~ar 
verdict of guilty, and the judge, at the defendant's request, reported 
the case for the determination of this court. 

A. Russ, for the defendant. 

C. a. Train, Attorney-General, for the Commonwealth. 

Endicott, J. We are of opinion that the ruling in this case cannot 
be sustained. It is true that one in the pursuit of an unlawful act may 
sometimes be punished for another act done without design and b3' mis- 
take, if the act done was one for which he could have been punished if 
done wilfully. Bivt_t.V|p gft, in hp nnlawfj il in t,his _ sense, must be an ac t 
bad in itself, 'a nd done with an evil intent ; and the law has always 
made this distinction : t hat li the act tfig^arty was doing was mere ly 
malum prohibitum, he shall not be punishable for the act arising from 
TlTisfortune or mistake ; but if m,alum in se, it is otherwise. 1 Hale 
f. (J. 89 ; Jfoster U. Li. 2oa. Acts m.ala in se include, in addition to 
felonies, all breaches of pubhc order, injuries to person or property, 
outrages upon public decency or good morals, and breaches of official 
dut\-, when done wilfully or corruptly. Acts mala prohibita include 
any matter forbidden or commanded by statute, but not otherwise wron". 
3 Greenl. Ev. § 1. It is within the last class that the city ordinance of 
Boston falls, prohibiting driving more than six miles an hour in the 
streets. 

Besides, to prove the violation of such an ordinance, it is not neces- 
sary to show that it was done wilfully or corruptlj\ The ordinance 
declares a certain thing to be illegal ; it therefore becomes illegal to do 
it, without a wrong motive charged or necessary to be proved ; and 
the court is bound to administer the penalty, although there is an entire 
want of design. The King ?;. Sainsbury, 4 T. R. 451, 4,57. It was held 
in Commonwealth v. Worcester, 3 Pick. 462, that proof only of the fact 
that the party was driving faster than the ordinance allowed was suf- 
ficient for conviction. See Commonwealth v. Farren, 9 Allen, 489 ; 
Commonwealth v. Waite, 11 Allen, 264. It is therefore immaterial 
whether a party violates the ordinance wilfully or not. The oflfence 
consists, not in the intent with which the act is done, but in doing the 
act prohibited, but not otherwise wrong. It is obvious, therefore, that 
the violation of the ordinance does not in itself supply the intent to do 
another act which requires a criminal intent to be proved. The learned 
iudgee rred in ruling that the intent to vio late the ordinance i'nltiiir^ 
— s irppITed the intent to'^iT5 taTn-tb«--elrargy"orlLssault"ancr~5attf>w:-^The 
verdict must therefore be set aside, anttn N'tw Ir iel-gr anted. 



SECT. II.J STATE V. HOKTON. 293 

STATE V. HORTON. 

Supreme Court of North Carolina. 1905. 

[Reported 139 N. C. 588.] 

Indictment for manslaughter against W. P. Horton, heard by Judge 
W. B. CouNCiLL and a jury, at April Term, 1905, of the Superior Court 
of Franklin County. The jury rendered a special verdict, and such 
verdict and proceedings thereon are as follows : 

"That in the month of November, 1904, to-wit: on the day 

thereof, the defendant, W. P. Horton, was hnnH^o ..fijrlrnyn nn t.hr 
l ands of anoth er ; th at_me following local statute, enacted by th*^ ftpn- 
era l Assembly of 1901, was in forc e at ami in the place^ iiTwHich said 
defendant was hunting, to-wit: chapter "$i<i^f the Laws of 1901 ; that 
the said Horton at the time he was so huntingf lwt^ not the written con - 
sent of the owner of said land, or of his lawful agent; that while so ■ 
engaged in bunting he killed (Jliarhe Hunt, the deceased, but that said 
killing was wholly unintentional ; that the shooting of the deceased was 
done while the defendant was under the impression and belief that he 
was shooting at a wild turkey; that the hunting engaged in by the 
defendant was not of itself dangerous to human life, nor was he reck- 
less in the manner of hunting or of handling the firearm with which the 
killing was done ; that hunting at that season was not forbidden under 
the general game law of the State, but was prohibited onl}' by the 
special statute referred to ; that the shooting from which the ivilling 
resulted was not done in such grossly- careless or negligent manner as 
to implj- any moral turpitude, or to indicate &ny indifference to tlie 
safeguarding of human life; that, b ut for the said statu te jierein incor - 
porated, the killing of the deceased by rlpfpnrlgnt rlnoa ^"^ fnpgHt.ntp 
anj :-violation of the law, if upon ttie aPove tindings of fact, the court 
^ould be of opinion that the defendant is guilt}- of manslaughter, we 
for our verdict find the defendant guilty of manslaughter, but if the 
court should be of opinion that the defendant is not guilty, we for our 
verdict find that the defendant is not guilty." Upon this special find- 
ing, the court being of o pinion that the defend ant was guilty of man- 
slaughter^so aj^j ild ged^nd orrlerp d t vordinti of [ ju i l TyTrf— rininvlni i ^^ffl yr 
to be entered, and gave judgment that the defendant be imprisoned in 
the county jail of Franklin, for a period of four months. Defendant 
excepted to the ruling of the court, and appealed from the judgment 
against him. 

Hoke, J., after stating the ease: It will be noted that the finding of 
the jury declares that the act of the defendant was not in itself danger- 
ous to human life, and excludes every element of criminal negligence, 
and res fci the,guilt or innocence o f thr drfrndint nn thn furf, nlrnr t^"^ 
at the time of the homicide the defendant was hunting on another's 



land without written permission from the owner. The act which applies 



294 STATE V. HOETON. [CHAP. IV. 

only in the counties of Orange, Franklin, and Scotland, makes the eon- 
duct a misdemeanor, and imposes a punishment on conviction, of not 
less than five nor more than ten dollars. 

The statement sometimes appears in works of approved excellence to 
the eflfect that an unintentional homicide is a criminal oflfence when 
occasioned by a person engaged at the time in an unlawful act. In 
nearly every instance, however, will be found the qualification that if 
the act in question is free from negligence, and not in itself of danger- 
ous tendency, and the criminality must arise, if at all, entirely from the 
fact that it is unlawful, in such case, the iiTi]ij|-fn1 Tnt munt ho n n? t''°^ 
is m alum • »'■> ?. sp- anrl nf)t mprply malu m, prohibitum, and this we hold to 
l ^the correct, doctrin e.. In J^'ostep's (Jrown Law, it is thus stated at 
"page 258 : "In order to bring a case within this description (excusable 
homicide) the act upon which death ensueth must be lawful. For if 
the act be unlawful, I mean if it be m,alum in se, the ease will amount 
to felony, either murder or manslaughter, as circumstances ma}' vary 
the nature of it. If it be done in prosecution of a felonious intent, it 
will be murder ; but if the intent went no further than to commit a bare 
trespass, it will be manslaughter." At page 259, the same author puts 
an instance with his comments thereon as follows: "A shooteth at 
the poultrj- of B and by accident killeth a man ; if his intention was to 
steal the poultry, which must be collected from circurnstances, it will 
be murder by reason of that felonious intent, but if it was done wan- 
tonl}' and without that intention, it will be barely manslaughter. The 
rule I have laid down supposeth that the act from which death ensued 
was malum, in se. For if it was barely malum-prohibitum, as shooting 
at game by a person not qualified by statute law to keep or use a gun 
for that purpose, the case of a person so offending will fall under the 
same rule as that of a qualified man. For the statutes prohibiting the 
destruction of the game under certain penalties will not, in a question 
of this kind, enhance the accident be3'ond its intrinsic moment." 

One of these disqualifying statutes here referred to as an instance of 
m,alum, prohibitum was an act passed (13 Richard II, chap. 13) to 
prevent certain classes of persons from keeping dogs, nets, or engines 
to destroj' game, etc., and the punishment imposed on conviction was 
one year's imprisonment. There were others imposing a lesser penalty. 

Bishop, in his work, entitled New Criminal Law, vol. 1, sec. 332, 
treats of the matter as follows : "In these cases of an unintended evil 
result, the intent whence the act accidentally sprang must probably be, 
if specific, to do a thing which is malum in se and not merely malum, 
prohibitum,." Thus Archbold sa3-s : "When a man in the execution 
of one act, by misfortune of chance and not designedly, does another 
act for which, if he had wilfully committed it, he would be liable to be 
punished — in that case, if the act he were doing were lawful or merely 
malum prohibitum,, he shall not be punishable for the act arising from 
- misfortune or chance, but if it be malum in se, it is otherwise. To 
illustrate : since it is malum prohibitum, not malum, in se, for au 



SECT. II.] STATE V. HOKTON. ' 295 

unauthorized person to kill game in England contrary to the statutes, 
if, in unlawfully shooting at game, he accidentally kills a man, it is no 
more criminal in him than if he were authorized. But to shoot at 
another's fowls, wantonly or in sport, an act which is malum in se, 
though a civil trespass, and therebj' accidentally to kill a human being 
is manslaughter. If the intent in the shooting were to commit larceny 
of the fowls, we have seen that it would be murder." To same effect 
is Estelle i;. State, 21 N. J. Law, 182; Com. v. Adams, 114 Mass. 
323. 

An offence malum in se is properly defined as one which is naturallj'l, 
evil as adjudged by the sense of a civilized community, whereas an act I 
malum, prohibitum, is wrong only because made so by statute. For ' 
the reason that acts m,ala in se have, as a rule, become criminal offences 
\)y the course and development of the common law, an impression has 
sometimes obtained that only acts can be so classified which the 
common law makes criminal, but this is not at all the test. An act 
can be, and frequently is, malum, in se, when it amounts only to a civil 
trespass, provided it has a malicious element or manifests an evil 
nature, or wrongful disposition to harm or injure another in his person 
or property. Bishop Cr. Law, supra; Com. v. Adams, supra. 

The distinction between the two classes of acts is well stated in 19 
Am. & Eng. Enc. (2nd ed.), at p. 705 : " An offence malum in se is 
one which is naturally evil, as murder, theft, and the like. Offences at 
common law are generally m,alum in se. An offence malum, prohibi- 
tum, on the contrary, is not naturally an evil, but becomes so in 
consequence of being forbidden." 

We do not hesitate to declare that the offence of the defendant in 
ihunting on the lan' fl ' vrith u ut vyrittcn peiuiitJHlU H ol Ui e nwr"" " y 
m,nl,v,m prohibitum,^a ,x\A the special verdict having found that the act 
in which the defendant was engaged was not in itself dangerous to 
human life, and negatived all idea of negligence, we hold that the case 
is one of excusable homicide, and the defendant should be declared not 
guilty. 

We are referred by the Attorney-General to East's Pleas of the 
Crown, and Hale's Pleas of the Crown, as authorities against this 
position. We would be slow indeed to hold that the law differed from 
what these eminent authors declared it to be in their daj- and time, nor 
are we required to do so, for a careful examination of their writings 
will, we think, confirm the views expressed by the court. My Lord 
Hale does say in volume 1, p. 39, that " If a man do e/x, intentione an 
unlawful act, tending to the bodily hurt of any person, as by striking or 
beating him, though he did not intend to kill him, but the death of the 
party struck, follow thereby witirin the year and day ; or if he strike at 
one and missing him kill another whom he did not intend, this is felony 
and homicide, and not casualtj' or per infortunium." " So it is, if he 
be doing an unlawful act though not intending bodily harm to any per- 
son, as throwing a stone at another's horse, if it hit a person and kill 



296 STATE V. HOETON. [CHAP. IV. 

him, this is felony and homicide, and not^er infortunium,- foi- tlie act 
was voluntarj', though the event was not intended, and therefore the 
act itself being unlawful, he is criminally guilty of the consequence that 
follows." 

But this author says in treating of the same subject, at pp. 475, 476 : 
" So if A throws a stone at a bird, and the stone striketh and killeth 
another to whom he intended no harm, it is^er infortunium, but if he 
had thrown the stone to kill the poultry or cattle of B, and the stone 
hits and kills a b^'stander, it is manslaughter because the act was un 
lawful; but not murder because he did not maliciousl}* or with intent 
to hurt the bystander. . . . By the statute of S3 Henry VIII, chap. 6, 
no person not having lands, etc., of the yearly value of one hundred 
pounds per annum may keep or shoot a gun, upon pain of forfeiture of 
ten pounds. Suppose, therefore, such a person, not qualified, shoot 
with a gun at a bird or at crows, and b}' mischance it kills a bystander, 
by the breaking of the gun or some other accident, that in another case 
would have amounted onl}- to chance-medley, this will be no more than 
chance-medley in him ; for though the statute prohibits him to keep or 
shoot a gun, 3-et the same was but malum prohibitum, and that only 
under a (jenaltj-, and will not enhance the effect beyond its nature." 

Mr. East, while he gives an instance which apparently supports the 
view of the State, in treating further on the subject in volume 1, p. 255, 
says: " Homicide in the prosecution of some act or purpose criminal 
or unlawful in itself, wherein death ensues collaterallj' to or beside the 
principal intent ; I sa}' collaterally to or beside the principal intent in 
order to distinguish this kind of homicide from that before treated of 
under the general head of malice aforethought, where the immediate 
and leading purpose of the mind was destruction to another. And first, 
it is principally to be observed that if the act on which death ensued be 
malum in se, it will be murder or manslaughter according to the cir- 
cumstances ; if done in the prosecution of a felonious intent, however, 
the death ensued against or beside the intent of the party, it will be 
murder ; but if the intent went no further than to commit a bare tres- 
pass, it will be manslaughter. As where A shoots at the poultry of B, 
and by accident kills a man ; if his intent were to steal the poultry, 
which must be collected from circumstances, it will be murder by reason 
of that felonious intent ; but if it were done wantonly and without that 
intent, it v.ill be barelj' manslaughter. A whips a horse on which B is 
riding, whereupon the horse springs out and runs over a child and kills 
it ; this is manslaughter in A and misadventure in B." And again, at 
page 257 : " So if one be doing an unlawful act, though not intending 
bodily harm to any person, as throwing at another's horse, if it hit a 
person and kill him, it is manslaughter. Yet in each case it seems that 
the guilt would rather depend on one or other of th^se circumstances ; 
either that the act might probablj- breed danger or that it was done 
with a mischievous intent." 

So we have it, that both Sir Matthew Hale and Mr. East, to whom 



SECT. II.] STATE V. HORTON. 297 

we were referred as supporting the claim of guilt, declared that the act 
must be malum in se, and the instances given bj- them show that these 
writers had this qualification in mind whenever they state the doctrine 
in more general terms. 

Sir William Blackstone also says in volume 4, pp. 192, 193 : "And 
in general when an involuntarj'' killing happens in consequence of an 
unlawful act, it will be either murder or manslaughter, according to the 
nature of the act which occasions it. If it be in prosecution of a 
felonious intent, or its consequences naturallj' tended to bloodshed, it 
will be murder; but if no more was intended than a mere civil trespass, 
it will be manslaughter" — citing Foster's Criminal Law. "We take it 
that the distinguished commentator must have intended only such civil 
trespasses as involve an element malum in se, as he cites Foster's 
Criminal Law, and this author, as we have seen, states the qualification 
suggested. 

Again, we are cited by the State to an instance put by East at 
p. 269 : " But though the weapons be of a dangerous nature yet if they 
be not directed bj* the person using them against each other, and so no 
danger to be reasonably apprehended, and if death casually ensue, it is 
but manslaughter ; as if persons be shooting at game, or butts, or anj' 
other lawful object, and a bj-stander be killed. And it makes no differ- 
ence with respect to game whether the partv be qualified or not, but if 
the act be unlawful in itself, as shooting at deer in another's park with- 
out leave, though in sport and without anj* felonious intent, wherebj^ a 
bj'stander is killed, it will be manslaughter ; but if the owner had given 
leave or the party had been shooting in his own park, it would only 
have been misadventure." Lord Hale, at page 475, gives the same 
instance. And it is urged that this instance is exactly similar to the 
one before us, but not so. 

According to Sir William Blackstone, in his Commentaries, book 2, 
p. 415 : " For sometime prior to the Norman Conquest, every free- 
holder had the full liberty of sporting upon his own territories, provided 
he abstained from the king's forests, as is full}' expressed in the laws 
of Canute and Edward the Confessor. Cuique enini in propria fundo 
quamlibet feram quoquo rnodo venari permissum." And further on it 
is said: "That if a man shoots game on another's private ground and 
kills it there, the propertj- belongs to him on whose ground it was 
killed. The property arising ratione soli. ... On the Norman Con- 
quest, a new doctrine took place, and the right of pursuing and taking 
all beasts of chase or venary, and such other animals as were accounted 
game, was then held to belong to the king, or to such only as were 
authorized under him." Again: "But if the king reserve to himself 
the forests for his own exclusive diversion, so he granted from time to 
time other tracts of land to his subjects under the name of chases or 
parks, or gave them license to make such in their own parks. And, by 
the common law, no one is at liberty to take or kill any beast of chase 
but such as hath an ancient chase or park." In Enc. Britannica we 



298 STATE V. HOETON. [CHAP. IV. 

read that the chases or parks were much the same, except that the 
parks were enclosed, having a tendency to make the game contained 
therein more completely and exclusively the property of the owner. 
Anyone who entered them was a trespasser, and in shooting the game 
therein, his act can be likened to that of the case put by Foster, East, 
and Lord Hale, where one wantonlj' shot another's chicken. He was 
engaged in the effort to destroy another's property, and the act could 
well be considered malum in se. But not so here. We hasifi— aever 
transplanted to t his countrj- either the Saxon or Nor man theorj' as to 
the right to take and approp riate p-amp TTp re. it is consid ered the 

pf^|-,o.4y r.t- tho ,.apt^ ov,.opf, pQy|^ppo \j^ tjin /|oc.p ^f hpPS^ 

' 1 1, is said m Ooolej- on Torts: "As regards beasts of chase, the 
English law is that if a hunter shoots and captures a beast on the land 
of another, the property is in him as in the owner of the land. Under 
the civil law, the property passed to the captor. And such is believed 
to be the recognized rule in America, even where the capture has been 
effected by means of a trespass on another's land." State v. House, 
65 N. C. 315. 

The act of the defend ant, therefore, was not in the effort to des troy 
anothur'ii piupoiLy, out was stric tly malum prohibitu m. Btate v. NTines, 
93 N. 0. 493, and Staie v. iJorse}-, 118 Ind. 167,~are cases apparently 
opposed to our present decision, but neither is really so. In State v. 
Vines the sport was imminentl}' dangerous, amounting to recklessness ; 
and in State v. Dorsey the element of criminal negligence was also 
present, and in this case a State statute governing the construction was 
given much weight. Neither the one case nor the other required anj- crit- 
ical examination of the doctrine as sometimes stated, that an uninten- 
tional homicide, occasioned when in the commission of an unlawful act, 
is manslaughter. The verdict in the case before us negatives both the 
elements of guilt (present in these two cases), declaring that the act 
was not in itself dangerous and that the defendant was not negligent. 

Again, it has been called to our attention that courts of the highest 
authority have declared that the distinction between malum prohibitum, 
and m,alum in se is unsound, and has now entirely disappeared. Our 
own court so held in Sharp v. Farmer, 20 N. C. 255, and decisions to 
the same effect have been made several times since. Said Ruflin, C. 
J., in Sharp v. Farmer : " The distinction, between an act malum in se 
and one malum, prohibitum was never sound and is entirely^ disregarded, 
for the law would be false to itself if it allowed a party through its tri- 
bunals to derive advantage from a contract made against the intent and 
express provisions of the law." It vnll be noted that this decision was 
on a case involving the validity of a contract, and the principle there 
established is undoubtedly correct. The fact, however, that the judge 
who delivered the opinion uses the words " was never sound," and that 
other opinions to the same effect use the words " has disappeared," 
shows that the distinction has existed; and it existed too at a time 
when this feature in the law of homicide was established. And we are 



SECT. ILJ state V. HORTOK. 299 

well assured that because the courts, in administering the law on the 
civil side of the docket, have come to the conclusion that a principle 
once established is unsound and should be rejected, this should not have 
the effect of changing the character of an act from innocence to guilt, 
which had its status fixed when the distinction was recognized and 
enforced. 

It was further suggested that the homicide was one of the very results 
which the statute was designed to prevent, and to excuse the defendant 
would be contrary to the policy of the act. But this can hardly be 
seriously maintained. It will be noted that it was not the owner of the 
land who was killed, but the defendant's comrade in the hunt ; and of a 
certainty, if our Legislature thought that conduct like that of the de- 
fendant was dangerous and the statute was designed to protect human 
life, some other penalty would have been imposed than a fine of " not 
less than five dollars and not more than ten." It is more reasonable to 
conclude that the act in its purpose was designed to prevent and sup- 
press petty trespasses and annoyances, such as leaving open gates, 
throwing down fences, treading over crops, etc. 

The special verdict having established that the act of the defendant 
was entirely accidental, it is a relief that we can declare him innocent 
in accordance with accepted doctrine, and that in the case at, bar the 
law can be administered in mercy as well as justice. Quoting again 
from that eminent judge and humane and enlightened man. Sir Michael 
Foster : ' ' And where the rigor of law bordereth upon injustice, mercy 
should, if possible, interpose in the administration. It is not the part 
of the judges to be perpetually hunting after forfeitures, where the 
heart is free from guilt. They are ministers appointed by the Crown 
for the ends of public justice, and should have written on their hearts 
the solemn engagement His Majesty is under to cause law and justice 
in mercy to be executed in all his judgments." We know that in this 
spirit the judge below dealt with the defendant and his cause ; for 
though the judgment of His Honor impelled him to the conclusion of 
guilt, he imposed the lightest punishment permissible for the offence. 

There was error in holding the defendant guilt3-, and, on the facts 
declared, a verdict of not guilty should be directed and the defendant 
discharged. 

Eeversed. 

Walker, J., concurs in result only. 



300 COMMONWEALTH V. MINK. [CHAP. IT. 



COMMONWEALTH v. MINK. 
SnPRESiE Judicial Court of Massachusetts. 1877. 

[Reported 123 Massachusetts, 422.] 

Indictment for the murder of Charles Ricker at Lowell, in the county 
of Middlesex, on August 31 , 1876. Trial before Ames and Morton, JJ., 
who allowed a bill of exceptions in substance as follows : — 

It was proved that Charles Ricker came to his death bj- a shot from 
d, pistol in the hand of the defendant. The defendant introduced evi- 
dence tending to show that she had been engaged to be married to 
Ricker ; that an interview was had between them at her room, in the 
course of which he expressed his intention to break off the engagement 
and abandon her entirelj' ; that she thereupon went to h£ r_trunfe , took 
a pist ol from it, and attempted to use it upon herself, with the intentf oli"' 
01 takfng her own life ; th at Ricker then seized her to prevent her from 
accomplishing that purpose, and a struggle ensued between them ; and 
that in the struggle the pistol was accidentally discharged, and in that 
waj' the fatal wound inflicted upon him. 

The jurv were instructed on this point as follows: "If j'ou believe 
the defendant's stor}-, and that she did put the pistol to her head with 
the intention of committing suicide, she was about to do a criminal 
and unlawful act, and that which she had no right to do. It is true, 
undoubtedl}-, that suicide cannot be punished b}' anj- proceeding of the 
courts, for the reason that the person who kills himself has placed him- 
self bej'ond the reach of justice, and nothing can be done. But the 
law, nevertheless, recognizes suicide_as a rriminnl fiiot, ani Lthe attem pt 
at suicide is also crimina l. It would be the dut}- of any bystander who" 
saw such an attempt about to be made, as a matter of mere humanit}', 
to interfere and try to prevent it. _And the rule is, that if a homiy.id e- 
is prod uced by the doi ng of an unlawful act, although the killing .wna 
.^he last thing that the person about to doit_had jn his mind, it •^ro nlrl 
.be an uni awiui Kiiimg. and the person would incur the responsibility 
which attaches to the crime of manslaughter. 

" Then you are to inquire, among other things, and if you reach that 
part of the case. Did this woman attempt to commit suicide in the pres- 
ence of Ricker ? and, if she did, I shall have to instruct you that he would 
have a riglit to interfere and try to prevent it by force. He would have 
a perfect right, and I think T might go further and say that it would be 
his duty, to take the pistol away from her if he possibly could, and to 
use force for that purpose. If then, in the course of the struggle on 
his part to get possession of the pistol to prevent the person from com- 
mitting suicide, the pistol went off accidentally, and he lost his life in 
that waj', it would be a case of manslaughter, and it would not be one 
of those accidents which would excuse the defendant from being held 
criminally accountable. 



SECT. IL] commonwealth V. MINK. 301 

" Did she get into su6h a condition of despondency and disappoint- 
ment that she was trying to commit suicide, and was about to do so? 
I^-tkat was }iei: condition, if she was ma king that attempt, and he inter - 
fprpd__t.r» pi-pvpnt. it and ^ ot jniiiredTiy"^ ani'iiln[il,H.1 iXm'Mrfp. jJUhc 
pistol, it would be ma.nslang hteri" The J 



! jury returned a verdict of guilty 
of manslaughter ; and the defendant alleged exceptions. 

Grat, C. J.^ The life of every human being is under the protection ' 
of the law, and cannot be lawfully taken by himself, or bj' another with 
his consent, except by legal authoritj'. By the co mmon law of Eng - 
land, suicide was nonsidprf.d a. t;rime against the laws of ftod and iT|a \i- 
tUe lands and ChaLlels oi the criminal were forfeited to the King, his 
body had an ignominious burial in the highway, juid he was deemed a 
murderer of himself and a felon, felo de se. Hales v. Petit, Plowd. 253, 
261; 3 Inst. 54; 1 Hale P. C. 411-417; 2 Hale P. C. 62 ; 1 Hawk, 
c. 27 ; 4 Bl. Com. 95, 189, 190. " He who kills another upon his desire 
or command is, in the judgment of the law, as much a murderer as if 
he had done it merely of his own head." 1 Hawk. c. 27, s. 6. One 
who persuades another to kill himself, and is present when he does so, 
is guilty of murder as a principal in the second degree ; and if two 
mutually agree to kill themselves together, and the means employed to 
produce death take effect upon one only, the survivor is guilty of the 
murder of the one who dies. Bac. Max. reg. 15 ; Rex v. Dyson, Russ. 
& Ry. 523 ; Regina v. Alison, 8 Car. & P. 418. One who encourages 
another to commit suicide, but is not present at the act which causes 
the death, is an accessory before the fact, and at common law escaped 
punishment only because his principal could not be first tried and con- 
victed. Russell's case, 1 Moody, 356 ; Regina v. Leddington, 9 Car. 
& P. 79. Andan _attempt to ('omtnit, sni<^id" is hfld in riii;];^ '"'^'^ ^'"i be 
punishable as a misdemeanor. Regina v. Doodj-, 6 Cox C. C. 463 ; 
Regina v. Burgess, Leigh & Cavep258 ; s. c. 9 Cox C. C. 247. 

Suicide has not ceased to be unlawful and criminal in this Common- 
wealth by the simple repeal of the Colonj' Act of 1660 by the St. of 
1823, c. 143, which (hke the corresponding St. of 4 G. IV. c. 52, enacted 
by the British Parliament within a j'ear before) maj- well have had its 
origin in consideration for the feelings of innocent surviving relatives ; 
nor by the briefer directions as to the form of coroner's inquests in the 
Rev. Sts. c. 140, s. 8, and the Gen. Sts. c. 175, s. 9, which in this, as in 
most other matters, have not repeated at length the forms of legal pro- 
ceedings set forth in the statutes codified ; nor by the fact that the 
Legislature, having in the general revisions of the statutes measured 
the degree of punishment for attempts to commit offences by the punisli 
^ ment prescribed for each offence if actually committed, has, intentionally 
or inadvertently, left the attempt to commit suicide without punishment, 
because the completed act would not be punished in any manner. Rev. 
Sts. c. 133, s, 12 ; Gen. Sts. c. 168, s. 8 ; Commonwealth v. Dennis, 

1 Arguments of counsel and part of the opinion are omitted. 



302 NEGLIGENCE. [CHAP. IV. 

105 Mass. 162. After all these changes in the statutes, the point decided 
in Bowen's case was ruled in the same waj- bj' Chief Justice Bigelovv 
and Justices Dewej-, Metcalf, and Chapman, in a case which has not 
been reported. Commonwealth v. Pratt, Berkshire, 1862. 

Since it has been provided by statute that " any crime punishable by 
death or imprisonment in the state prison is a felony, and no other 
crime shall be so considered," it may well be that suicide is not techni- 
cally a felony in this Commonwealth. Gen. Sts. c. 168, s. 1 ; St. 1852, 
c. 37, s. 1. But being _ji nla ffi ful and criminal p '^ r"nJ'"'>v iv y°j f tr j 
attempt to commit it is likewise unlaw< '"i anr" ^'■ji^iTij^i Every one has 
the same right iM duty to interpose to save a life from being so unlaw- 
fully and criminall}- taken that he would have to defeat an attempt 
unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV. 
46, pi. 10 ; Marler v. Ayliflfe, Cro. Jac. 134 ; 2 Eol. Ab. 559 ; 1 Hawk, 
c. 60, s. 23. An^ it is nnt d'TutH thst finy p"?ii ■! ini'iii) !i| i1". inc: or 
attempting to do an act which is unlawful and criminal, jtills an other. 

^though n ot intendin g his death, is guilty of criminal homicide, a nd, at 

^the least, of manslaughter. 

The only doubt that we have entertained in this case is, whether the 
act of the defendant, in attempting to kill herself, was not so malicious, 
in the legal sense, as to make the killing of another person, in the 
attempt to carry out her purpose, murder, and whether, the instructions 
given to the jury were not therefore too favorable to the defendant. 

deceptions overruled. 



SECTION in. 

2%e mens rear 
Negligence. 

Foster, Crown Law, 262. , Itjs not sufficien t that the act u po n whic h 
death ensuethJasjawful or innocent, it ffi u'st be done in a propel manfief 
and with_due-CautLcm-ta-pi:£geiit mischi ef Parents7 master, and otBET" 



SECT. III.] NEGLIGENCE. 303 

persons having authoritj' in for o domeatico, va&y give reasonable correc- 
tion to those under their care ; and if death ensueth without their fault, 
it will be no more than accidental death. But if the correction exceedeth 
the bounds of due moderation, either in the measure of it or in the instru- 
ment made use of for that purpose, itwill be eitlier murder or manslaughter 
according to the circumstances of the case. If with a cudgel or other 
thing not likely to kill, though improper for the purpose of correction, 
manslaughter. If with a dangerous weapon likely to kill or maim, due 
regard being always had to the age and strength of the party, murder. 

This rule touching due caution ought to be well considered by all 
persons following their lawful occupations, especially such from whence 
danger may probably arise. 

Workmen throw stones, rubbish, or other things from an house in the 
ordinary course of their business, by which a person underneath hap- 
peneth to be killed. If thej' look out and give timely warning beforehand 
to those below, it will be accidental death. If without such caution, it 
will amount to manslaughter at least. It was a lawful act, but done in 
an improper manner. 

I need not state more cases by way of illustration under this head ; 
these are suflScient. But I cannot pass over one reported by Kelj-ng 
(Kel. 41), because I think it an extremely hard case, and of very exten- 
sive influence. A man found a pistol in the street, which he had reason 
to believe was not loaded, having tried it with the rammer ; he carried 
it home and showed it to his wife ; and she standing before him he 
pulled up the cock, and touched the trigger. The pistol went off and 
killed the woman. This was ruled manslaughter. 

It appeareth that the learned editor '^ was not satisfied with the judg- 
ment. It is one of the points he in the preface to the report recom- 
mendeth to farther consideration. 

Admitting that the judgment was strictly legal, it was, to say no 
better of it, summum jus. 

The law in these cases dothnot require the utmost caution that c an 
be useT; it is sufficient tHat a r easoagl^lp pri^'"?^!^"- .what is usual an d 
"~ordinarv in ~tlie'^ifee cases, be~{- ,g,lr^ In the case just mentioned of 
"workmen throwing rubbish from buildings, the- ordinary caution of look- 
ing out and giving warning by outcry from above will excuse, though 
doubtless a better and more effectual warning might have been given. 
But this excuseth, because it is what is usually given, and bath been 
found by long experience, in the ordinary course of things, to answer 
the end. The man in the case under consideration examined the pistol 
in the common way ; perhaps the rammer, which he had not tried before, 
was too short and deceived him. But having used the ordinary caution, 
found to have been eflfectual in the like cases, he ought to have beeu 
excused. 

1 Chief Justice Holt. 



304 EEGINA V. CHAMBERLAIN. [CHAP. IV. 

I have been the longer upon this case, because accidents of this 
lamentable kind may be the lot of the wisest and the best of manlsind, 
and most commonly fall among the nearest friends and relations ; and 
in such a case the forfeiture of goods, rigorously exacted, would be 
heaping affliction upon the head of the afflicted, and galling an heart 
alreadj' wounded past cure. It would even aggravate the loss of a 
brot.her, a parent, a child, or wife, if such a loss under such circum- 
stances is capable of aggravation. 

I once upon the circuit tried a man for the death of his wife by the 
like accident. Upon a Sunday morning the man and his wife went a 
mile or two from home with some neighbors to take a dinner at the 
house of their common friend. He carried his gun with him, hoping 
to meet with some diversion by the way ; but before he went to dinner 
he discharged it, and set it up in a private place in his friend's house. 
After dinner he went to church, and in the evening returned home with 
his wife and neighbors, bringing his gun with him, which was carried 
into the room where his wife was, she having brought it part of the way. 
He taking it up touched the trigger, and the gun went off and killed his 
wife, whom he dearly loved. It came out in evidence that, while the 
man was at church, a person belonging to the family privately took the 
gun, charged it and went after some game ; but before the service at 
church was ended returned it loaded to the place whence he took it, 
and where the defendant, who was ignorant of all that had passed, 
found it, to all appearance as he left it. I did not inquire whether the 
poor man had examined the gun before he carried it home ; but being 
of opinion upon the whole evidence, that he had reasonable grounds to 
believe that it was not loaded, I directed the jury, that if they were of 
the same opinion they should acquit him. And he was acquitted. 



REGINA V. CHAMBERLAIN. 
"Hertford Assizes. 1867. 

[Reported 10 Oox C. C. 486.] 

Indictment for manslaughter. 

The prisoner had resided for many years in Hertford, carrying on the 
business of a herbalist, and he was also what was called a " quack doc- 
tor." The deceased woman had for some years a tumor on her shoulder, 
and in March, 1866, she consulted the prisonet, who gave her first a 
mercurial ointment, to which no objection was taken. After this, how- 
ever, it was said he gave her a different ointment, which was arsenical, 
and this it was suggested had caused her death by being absorbed into 
the system. The case for the prosecution was that she became worse 
after she used this ointment, that is to say, in August, 1866 ; that she 



SECT. III.] EEGINA V. CHAMBERLAIN. 305 

I 

suffered from arsenical symptoms ; and that her death, which happeued 
in Septeinber, was owing to this cause. It was not disputed that she 
died with the symptoms of arsenic, nor that there was arsenic in the 
ointment she used ; the real q uestion in the case was wi ther ther e wa s 
'' culpable negligence " oST the pa rt oTThe prisoner in giving it with out 
dtro-preeaotionS^ Thalfbeing the question in the case, it turned a good 
dSSTIipon the' medical evidence as to the use of arsenic in ointments. 
As to this Dr. Taylor admitted that it was used upon the Continent, 
and that it had been used in this country until within the last thii-ty 
years, when he said it was discovered that it was absorbed into the sys- 
tem, and it was discontinued in this country, though it still was used 
upon the Continent. The foreign practitioners, he said, were a little 
more given to a bold system in cases apparently hopeless, and a little 
more disposed to what he called " heroic" treatment — that is to say, 
treatment in which the medical practitioner for the sake of the patient 
runs some risk — than our English practitioners, who, he intimated, 
were rather more cautious in such cases. Another pouifcon _which t he 
case turn ed w as as to the prisona);-H ot havir\ g^ warned the deceased (j f 
^KeTiecessarj' effect of the arsenic when absorbed into the syste m. It 
did not appear tbat he had given any particular directions beyond tell- 
ing her to "rub some of the ointment in ;" and the woman, naturally 
thinking that the more she rubbed the better, had rubbed and rubbed 
until she had absorbed so much of the poison that she died ; and the 
prisoner had sold her another box without, as it appeared, making any 
observation as to the effect of the first. 

Parry, Serjt., for the prisoner, contended that it was a case of a 
mere blunder or error, and not a case of negligence so culpable as to 
be criminal. 

Blackburn, J., to the jury. If the prisoner by culpable negligen ce 
lia.d (lans ed the death of the deceased woman, he was gu ilty of man- 
s laughter; but t^ ■" '^ifir'^ ^^'^*- tha t death had occurred through uTlstake 
o r misfortune would not be enough, or no medic al man would UTS s afe . 
Tiiere must, however, be competent knowledge and care in dealing with 
a dangerous drug, and if the man either was ignorant of the nature of 
the drug he used or was guilty of gross want of care in its use, there 
would be criminal culpability. In the one case there would be culpable 
rashness in using so dangerous a drug in ignorance of its operation ; in 
the other case there would be culpable want of care or culpable care- 
lessness in the use of the drug ; and in either case that would be culpa- 
ble and criminal negligence, which would justify a conviction, supposing 
the jury were satisfied that the death arose from the arsenic. The first 
question was, whether the death was caused bj' the arsenic administered 
by the prisoner ; upon which, however, he thought the evidence very 
strong. The real question would be whether there was culpable negli- 
gence, which resolved itself into the two questions he had explained. 
He could not define the nature of " culpable negligence" otherwise than 
as he hfld described it. It was a question for the jury, for it was a 



306 BEGIN A «. SALMON. [CHAP. IV. 

question of degree. It was a question of more or less, and it could not 
be defined. All the direction he could give them was that if theprisoncr 
administered the arsenic without knowing o r taking^ tae pams to lin d out 
"Whai lts"etfect would b gj or if knowing this, he g^ve it to the patieat4fi 

"ije used without giving her adequate directions asl QJts use, there WQjild 
m'eiCliyr'-vtew oFthe caseMPFci npabie iTegiigen ce, and t he prisone r ojiaht 
57 by convictgSTiKrrtr otherwise, there would not be~suoh negligence, 
an^he prisoner ought to be acquitted. The most serious part of the 
case was in the apparent absence of caution or directions to the woman 
as to the use of the arsenical ointment, the effect of which, as was well 
known, was that it would be absorbed into the s^'stem so as to cause 
death. It was said that foreign doctors used it, but if so it might be 
presunjed that they watched its use with cai-e. It appeared to him that 
a medical man who should administer such a drug or allow a patient to 
apply it without taking any care to observe its effects or guard against 
them, would be gravely wanting in due care. Whether under t he ei r- 

-cumstances it a, mounte d to culpable negligence was, he repealed* for 



t^ejury^ """^^ "Not guilty . ' 



REGINA V. SALMON. 
Ceown Case Reserved. 1880. 

[Reported 14 Cox C. C. 494.] 

Case reserved for the opinion of this court by Lord Coleridge, C. J., 
at the Summer Assizes at Wells, 1880. 

The three prisoners were tried for the manslaughter of William Wells, 
a little boy of ten years old. The prisoners went into a field, and each 
fired a shot from a rifle at a target. One of the shots killed the deceased, 
who was at the time in a tree in his father's garden, distant about four 
hundred yards from the spot where the shot was fired. ■ The rifle was 
sighted for nine hundred and fifty yards, and would probablj- be deadl}' 
at a mile. It did not appear which one of the prisoners fired the fatal 
shot.^ 

No counsel appeared to argue on behalf of the prisoners. 

Norris for the prosecution. The prisoner who fired the fatal shot 
was clearly guilty of manslaughter, but the evidence of his identity not 
being clear, the rule that all persons engaged in a common enterprise 
are jointl}' liable will apply. All the prisoners went into the field for 
a common purpose, rifle practice ; and it was their duty to take all 
proper precautions to prevent any danger to other persons. The plan 
attached to the case shows that they fired across three highways, and 

1 Ace. Keg V. Macleod, 12 Cox C. C. 534; State v. Hardister, 38 Ark. 605. — Ed. 

2 This statement of the case is condensed from the report of Lord Coleridge. 
— Ed. 



SECT. III.] KEGINA V. NICHOLLS. 307 

that they were flring too near to the neighboring gardens, in one of 
which the deceased hoy was. 

LoKD Coleridge, C. J. I am of opinion that the conviction was 
right and ought to be affirmed. If a person does a thing which in itself 
is dan gerous, and witho ut taking proper precautions i" |,iitiV'^'^^^''^?"S'''' 
arising, and if h e so does it and Itills a person, it is a criminal ac t as 
againstthatpej^m^ That would make it clearly manslaughter as 
regSFds the prisoner wjwee shot killed the boy. It follows as the result 
of the_^ culpable negligence of this one, t hat e a ch of the prisoneja .ig 
aaag erable for the acts of the others, they all being engaged in on e 
common purs uit,,.^ J 

iJiELD, J. -I am of the same opinion.. At first I thought it was ne- ' : 
cessary to show some duty on the part of the prisoners as regards the 
boy, but I am now satisfied that there was a duty on the part of the 
prisoners towards the public generally' not to use an instrument likely 
to cause deatt without taking due and proper precautions to prevent 
injury to the public. Looking at the character of the spot where the"; 
firing took place, there was sufficient evidence tliaT all three prisoners • 
were guilty of culpable negligence under the circumstances. 

Lopes, J., concurred. 

Stephen, J. I am of opinion that all three prisoners were guilty of 
manslaughter. The culpable omission of a duty which tends to preserve 
life is homicide ; and it \^ ^f ^niy of every one to take proper preca u- 
tions jii_doing an act which ma y be dangerous to life. In this case the 
firing of the rifle was a dangerous act, and all three prisoners were 
jointly responsible for not taking proper precautions to prevent the 
danger. 

Watkin Williams, J., concurred. Conviction affirmed. 



EEGINA V. NICHOLLS. 
Stafford Assizes. 1875. 

[Beported 13 Cox C. C. 75.] 

Prisoner was indicted for the manslaughter of Charles Nicholls. 

A. Young prosecuted. 

The prisoner was the grandmother of the deceased, an infant -.af 
tender years, said to have died from the neglect of the prisoner to 
supply it with proper nourishment. Slie_,was a poor woman, and in 
order to' earn her livelihood was out the greater part of the day. The 
deceased was the child of the prisoner's daughter. The daughter was 
dead, and therefore the prisoner took charge of the child, and while 
away from home l eft it_t o the sole care ojF a bov "f tiiup vpara The 
cause of death was emacmtion, probably resulting from want of food. 



308 KEGINA V. NICHOLLS. [CHAP. IV. 

The facts will be found more particularly stated in the summing up of 
the learned judge. 

At the close of the case for the prosecution, Brett, J., asked what 
was the neglect charged. 

A. Young. Leaving the child in the sole custody of so young a boy 
during many hours of the daj'. 

Beett, J., to the jury. This woman is charged with manslaughter 
under somewhat peculiar circumstances. Sh e^^as the grandmother of 
t h e deceased infant, and not bound hv law to take care of it. She 
might have sent the child to the workhouse, but did not do so. If a 
^rown up person chooses to undertake the charge of a human creature, 
Ihelpless either from infancy, simplicity, lunacj^ or other infirmity, he is 
bound to execute that charge without, at all events, wicked negligence ; 
an d if a person who has chosen to take charge of a helpless creatu re 
lets it die bv wick pH nppjlig grmp. t.ha.t persnn is guilty of manslaughter. 
MerenpQrligeTin.e wif] jint, do ; th ere must be wiCKen nq g-ligp.nce. that is. 
■^Iigence so great that j'ou must be of opinion that the prisoner had 
a wicked mind, in tie sense that she was reckless and careless whether 
the creature died or not. We must judge of all these things according 
to tiJfcstate and condition of the persons concerned. Here was an old 
woman left in a difHcult position. The child was probably illegitimate. 
Its mother, who was the prisoner's daughter, liad died, and would not 
probably have suckled it for some days before her death. The child 
was small and weakly. It might, perhaps, have lived. "What, however, 
was the prisoner to do ? It is said that she had, through her own mis- 
conduct, fallen into bad circumstances ; that she was addicted to drink, 
and th^t her furniture had been seized. She was out all day collecting 
rags and bones. What ought she to have done with respect to the 
iKliild ? The prosecution saj' that she ought to have sent it to the parish 
authorities. Perhaps she ought. But she, like others, might be full of 
prejudice, and dislike to send it there. So her omission to send it is 
I not sufficient ; for, as I have pointed out, there must be wicked negli- 
Vence on her part. Then she must go out to work. She could not find 
any one else, for she had no means, so she got a son of nine 3'ears old 
to look to the infant. She may have been very careless, but the que s- 
ti on is, was she wickedly carele ss ? She was in fault, for she ought not 
to have been away so many iiours at a time ; and no doubt you will 
think that it was that that caused the death of the child. The boy was 
careless, b ut it appears ' thg,t the old woman certainly did have fnod- in 
^jigjiouse. Suppose she told the boy to feed the bab3-, and left food 
wherewith to feed it ? Still she would be careless, for she ought to 
(lave returned home to see that he did so. It is verj- right that this 
case should be inquired into, and that the neighbors should look into 
it, but nevertheless it is right that we should consider the circumstances 
of the prisoner in order to determine whether she has been guilty of 
such carelessness as I have defined. 

Verdict, Not guilt}/. 



SECT. ni.J COMMONWEALTH V. PIERCE. 309 

COMMONWEALTH v. PIERCE. 

Supreme Judicial Court of Massachusetts. 1884. 

[Reported 138 Mass. 165.] 

Holmes, J. The defendant has been found guilty of manslaughter, 
on evidence that he publicly practised as a physician, and, being called 
to attend a sick woman, caused her, with her consent, to be kept iii 
flannels saturated with kerosene for three days, more or less, by reason 
of which she died. There was evidence that he had made similar appli- 
cations with favorable results in other cases, but that in one the effect 
had been to blister and burn the flesh as in the present case. 

The main questions which have been argued before us are raised by 
the fifth and sixth rulings requested on behalf of the defendant, but 
refnsed by the court, and by the instructions given upon the same 
matter. The fifth request was, shortly, that the defendant must have 
" so much knowledge or probable information of the fatal tendency of 
the prescription that [the death] may be reasonably presumed by the 
jury to be the effect of obstinate, wilful rashness, and not of an honest 
intent and expectation to cure." The seventh request assumes the law 
to be as thus stated. The sixth request was as follows : "If the de- 
fendant made the prescription with an honest purpose and intent to 
cure the deceased, he is not guilty of this offence, however gross his 
ignorance of the qualitj' and tendency of the remedy prescribed, or of 
the nature of the disease, or of both." The eleventh request was sub- 
stantially similar, except that it was confined to this indictment. 

The court instructed the jury that "it is not necessary to show an 
evil intent ; " that, " if by gross and reckless negligence he caused the 
death, he is guilty of culpable homicide ; " that " the question is whether 
the kerosene (if it was the cause of the death), either in its original 
application, renewal, or continuance, was applied as the result of fool- 
hardy presumption or gross negligence on the part of the defendant ; " 
and that the defendant was "to be tried by no other or higher stand- 
ard of skill or learning than that which he necessarily assumed in treat- 
ing her ; that is, that he was able to do so without gross recklessness 
or foolhardy presumption in undertaking it." In other words, that the 
defendant's duty was not enhanced by any express or implied contract, 
but that he was boun d, at J iis peril to ,do n o grossly reckles s ac ^ _wl|en , 
ir\,^^e absenc e of ap -y; emerg e ncy o r other exceptional circumstances, 
^jst^Btermed dledwith th e4ifigseH-trf-aa«ther. 

I'llB LlBffehdanl relieson the case of Commonwealth v. Thompson, 6 
Mass. 134, from which his fifth request is quoted in terms. His argu- 
ment is based on another quotation from the same opinion : " To con- 
stitute manslaughter, the killing must have been a consequence of some 
unlawful act. Now, there is no law which prohibits any man ivmn 
prescribing for a sick person with his consent, if he honestly intends to 



310 COMMONWEALTH V. PIEEOE. [CHAP. IV. 

cure Ilim by his prescription." This language is ambiguous, and we 
must begin by disposing of a doubt to which it might give rise. If it 
meaus that the killing must be the consequence of an act which is un- 
lawful for independent reasons apart from its likelihood to kill, it is 
wrong. Such may once have been the law, but for a long time it has 
been just as fully, and latterly, we may add, much more willingly, rec- 
ognized that a man may commit rgu ider or mansla 'ip;hi-.p|- hy Hmnnr 
o therwise lawful " i^tfi rP'^'^^g^^Ti as thatTie may by doing acts unlawful 
for independent reasons, from which death accidentallj' ensues. 3 Inst. 
57 ; 1 Hale P. C. 472-477 ; 1 Hawk. P. C, c. 29, §§ 3, 4, 12 ; c. 31, 
§§ 4-6 ; Foster, 262, 263 (Homicide, c. 1, § 4) ; 4 Bl Com. 192, 197 ; 
1 East P. C. 260, and seq. ; Hull's case, Kelyng, 40, and cases cited 
below. 

But recklessness in a moral sense means a certain state of conscious- 
ness with reference to the consequences of one's acts. No matter 
whether defined as indifference to what those consequences 'may be, or 
as a failure to consider their nature or probability as fully as the party 
might and ought to have done, it is understood to depend on the actual 
condition of the individual's mind with regard to consequences, as 
distinguished from mere knowledge of present or past facts or circum- 
stances, from which some one or everybody else might be led to antici- 
pate or apprehend them if the supposed act were done. We have to 
determine whether recklessness in this sense was necessary to make 
the defendant guilty of felonious homicide, or whether his acts are to 
be judged by the external standard of what would be morally reck- 
less, under the circumstances known to him, in a man of reasonable 
prudence. 

More specifically, the questions raised by the foregoing requests and 
rulings are whether an actual good intent and the expectation of good 
results are an- absolute justification of acts, however foolhardj' they 
may be if judged by the external standard supposed, and whether the 
defendant's ignorance of the tendencies of kerosene administered as it 
was will excuse the administration of it. 

So far as civil liability is concerned, at least, it is very clear that 
what we have called the external standard would be applied, and that, 
if a man's conduct is such as would be reckless in a man of ordinary 
prudence, it is reckless in him. Unless he can bring himself within 
some broadly defined exception to general rules, the law deliberately 
leaves his idiosyncrasies out of account, and peremptorily assumes that 
he has as much capacity to judge and to foresee consequences as a man 
of ordinary prudence would have in the same situation. In the language 
of Tindal, C. J., " Instead, therefore, of saying that the liability for 
negligence should be coextensive with the judgment of each individual, 
which would be as variable as the length of the foot of each individual, 
we ought_ratherjto adhere to the rule which re quires in all cases a re - 
gard to ca ution such as a man of ordinary prudence would observe." 
"Iiaugiiaii V. Menlove, 3 Bing. IN. U. 4 ( )j ~- l75 ; p. '; -f Ijc6t|ffift44. 



SECT. 211.] COMMONWEALTH V. PIERCE. 311 

If this is the rule adopted in regard to the redistribution -of losses, 
which sound policy allows to rest where they fall in the absence of a 
clear reason to the contrary, there would seem to be at least equal 
reason for adopting it in the criminal law, which has for its immediate 
object and task to establish a general standard, or at least general neg- 
ative limits, of conduct for the community, in the interest of the safety 
of all. 

There is no denying, however, that Commonwealth v. Thompson, 
although possibly distinguishable from the present case upon the evi- 
dence, tends very strongly to limit criminal liability more narrowly 
than the instructions' given. But it is to be observed that the court 
did not intend to lay down any new law. They cited and meant to 
follow the statement of Lord Hale, 1 P. C. 429, to the effect " that if a 
physician, whether licensed or not, gives a person a potion, without 
any intent of doing him any bodily hurt, but with intent to cure, or 
prevent a disease, and, contrar}' to the expectation of the physician, it 
kills him, he is not guilty of murder or manslaughter." 6 Mass. 141. 
If this portion of the charge to the jurj' is reported accurately, which 
seems uncertain (6 Mass. 134, n.), we think that the court fell into the 
mistake of taking Lord Hale too literally. Lord Hale himself admitted 
that other persons might make themselves liable by reckless conduct. 
1 P. C. 472. We doubt if he meant to deny that a physician might do 
so, as well as any one else. He has not been so understood in later 
times. Rex v. Long, 4 C. & P. 423, 436 ; Webb's case, 2 Lewin, 196, 
211. His testis simply an abridgment of 4 Inst. 251. Lord Coke 
there cites the Mirror, c. 4, § 16, with seeming approval, in favor of 
the liability. The case cited by Hale does not deny it. Fitz. Abr. 
Coroue, pi. 163. Another case of the same reign seems to recognize it. 
Y. B. 43 Edw. III. 33, pi. 38, where Thorp said that he had seen one 
M. indicted for killing a man whom he had undertaken to cure, by want 
of care. And a multitude of modern cases have settled the law accord- 
ingly in England. Rex v. Williamson, 3 C. & P. 635 ; Tessymond's case, 
1 Lewin, 169; Ferguson's case, 1 Lewin, 181; Rex v. Simpson, Will- 
cock, Med. Prof., part 2, ccxxvii. ; Rex v. Long, 4 C. & P. 398; Rex 
V. Long, 4 C. & P. 423 ; Rex v. Spiller, 5 C. & P. 333 ; Eex v. Senior, 
1 Moody, 346 ; Webb's case, ubi supra ; s. c. 1 Mood. & Rob. 405 ; 
Queen v. Spilling, 2 Mood. & Rob. 107 ; Regina v. Whitehead, 3 C. & 
K. 202 ; Regina ■u. Crick, 1 F. & F. 519; Regina v. Crook, 1 F. & F. 
521 ; Regina v. Markuss, 4 F. & F. 356 ; Regina v. Chamberlain, 10 
Cox C. C. 486; Regina v. Macleod, 12 Cox C. C. 534. See also Ann 
V. State, 11 Humph. 159; State v. Hardister, 38 Ark. 605; and the 
Massachusetts cases cited below. 

If a physician is not less liable for reckless conduct than other people, 
it is clear, in the light of admitted principle and the later Massachusetts 
cases, that the recklessness of the criminal no less than that of the civil 
law must be tested by what we have called an external standard. In 
dealing with a man who has no special training, the question whether 



312 V COMMONWEALTH V. PIERCE. [CHAP. IV. 

his act would be reckless in a man of ordinary prudence is evidently 
equivalent to an inquirj' into the degree of danger which common expe- 
rience shows to attend the act under the circumstances known to the 
actor. The only difference is that the latter inquiry' is still more obvi- 
ouslj' external to the estimate formed By the actor personally than the 
former. But it is familiar law that an act causing death may be mur- 
der, manslaughter, or misadventure, according to the degree of danger 
attending it. If the danger is very great, as in the case of an assault 
with a weapon found by the jury to be deadly, or an assault with hands 
and feet upon a woman known to be exhausted by illness, it is murder. . 
Commonwealth v. Drew, 4 Mass. 391, 396 ; Commonwealth v. Fox, 
7 Gray, 685. The doctrine is elearl}' stated in 1 East P. C. 262. 

The verj' meaning of the fiction of implied malice in such cases at 
common law was, that a man might have to answer with his life for 
consequences which he neither intended nor foresaw. To saj' that he 
was presumed to have intended them, is merely to adopt another 
fiction, and to disguise tlie truth. The truth was, that his failure or 
inability to predict them was immaterial, if, under the circumstances 
known to him, the court or jurj-, as the case might be, thought them 
obvious. 

As implied malice signifies the highest degree of danger, and makes 
the act murder-; so, if the danger is less, but still not so remote that it 
can be disregarded, the act will be called reckless, and will be man- 
slaughter, as in the case of an ordinary assault with feet and hands, or 
a weapon not dead!}', upon a well person. Cases of Drew and Fox, 
iibi supra. Or firing a pistol into the highwaj', when it does not amount 
to murder. Rex v. Burton, 1 Stra. 481. Or slinging a cask over the 
highwaj' in a customary, but insufficient mode. Rigmaidon's case, 
1 Lewin, 180. See Hull's case, ubi supra. Or careless driving. Rex 
V. Timmins, 7 C. & P. 499; Regina v. Dalloway, 2 Cox C. C. 273; 
Regina v. Swindall, 2 C. & K. 230. 

If the principle which has thus been established both for murder and 
manslaughter is adhered to, the defendant's intention to produce the 
opposite result from that which came to pass leaves him in the same 
position with regard to the present charge that he would have been in 
if he had had no intention at all in the matter. We think that the 
principle must be adhered to, where, as here, the assumption to act as 
a physician was uncalled for bj* anj- sudden emergencj', and no excep- 
tional circumstances are shown ; and that we cannot recognize a privi- 
lege to do acts manifestly endangering human life, on the ground of 
good intentions alone. 

We have implied, however, in what we have said, and it is undoubt- 
edly true, as a general proposition, that a inan's liability for hia a^tsj a 
de termined by their tende ncy under the circumstances kn own to him, 
and no t by their tendenc y under all ttie ci rcumstan ces actually atfecting 
the resu lt, iThftliiii 1i iiiiTirTTTnHfnaaMT'^ Ann it mir nr i-irrri Ti'hy thi 
dangerous character of kerosene, or "the fatal tendency of the pre- 



SECT. III.] COMMONWEALTH V. PIERCE. 313 

scription," as it was put in the fifth request, is not one of the circum- 
stances the defendant's knowledge or ignorance of which migh/t have a 
most important bearing on his guilt or innocence. 

But knowledge of the dangerous character of a thing is only the 
equivalent of foresight of the way in which it will act. We admit that, 
if the thing is generally supposed to be universally harmless, and only 
a specialist would foresee that in a given case it would do damage, a 
person who did not foresee it, and who had no warning, would not be 
held liable for the harm. If men were held answerable for everything 
they did which was dangerous in fact, they would be held for all their 
acts from which harm in fact ensued. The use of the thing must be 
dangerous according to common experience, at least to the extent that 
there is a manifest and appreciable chance of harm from what is done, 
in view either of the actor's knowledge or of his conscious ignorance. 
And therefore, again, if the danger is due to the specific tendencies of 
the individual thing, and is not characteristic of the class to which it 
belongs, which seems to have been the view of the common law with 
regard to bulls, for instance, a person to be made liable must have 
notice of some past experience, or, as is commonly said, " of the qualitj' 
of his beast." 1 Hale P. C. 430. But if the dangers are characteristic 
of .the class according to common experience, then he who uses an arti- 
cle of the class upon another cannot escape on the ground that he had 
less than the common experience. Common experience is necessary to 
the man of ordinary prudence, and 'a man who assumes to act a5~ tfae 
defendant did must ha ve it at his pe ril. When the jury are asked 
Wtrelhtir a, alick Ol a certain size was a deadly weapon, thej' are not 
asked further whether the defendant knew that it was s6. It is enough 
that he used and saw it such as it was. Commonwealth v. Drew, ubi 
supra. See also Commonwealth v. Webster, 5 Cush. 295, 306. So as 
to an assault and battery by the use of excessive force. Common- 
wealth V. Eandall, 4 Gra}', 36. So here. T he defendant knew that h e 
was usi ng kerosene . The jury have found that it w.is ap plipH as the 
result of toolharclj' presumption or gross ne gligence, and that is eno ugh. 
CommonwealLU V. SU'UUou, 114 Mass. 6&6, 3Ui3. maeed, if the de- 
fendant had known the fatal tendency of the prescription, he would 
have been perilously near the line of murder. Regina v. Packard, 
C. & M. 236. It will not be necessary to invoke the authority of those 
exceptional decisions in which it has been held, with regard to knowl- 
edge of the circumstances, as distinguished from foresight of the con- 
sequences of an act, that, when certain of the circumstances were 
known, the party was bound at his peril to inquire as to the others, 
although not of a nature to be necessarilj- inferred from what were 
known. Commonwealth v. Hallett, 183 Mass. 452; Regina i;. Prince, 
L. R. 2 C. C. 154 ; Commonwealth v. Farren, 9 Allen, 489. 

The remaining questions may be disposed of more shortly. When 
the defendant applied kerosene to the person of the deceased in a way 
which the jury have found to have been reckless, or, in other words, 



314 JOHNSON V. STATE. [CBAP. IV. 

seriously and unreasonably endangering life according to common ex- 
perience,' he did an act which his patient could not justify bj' her con- 
sent, and which therefore was an assault notwithstanding that consent. 
Commonwealth v. Collberg, 119 Mass. 350. See Commonwealth v. 
Mink, 123 Mass. 422, 425. It is unneeessar3' ,to relj^ on the principle 
of Commonwealth v. Stratton, uM supra, that fraud may destroy the 
ieifect of consent, although evidently the consent in this case was based 
[on the express or implied representations of the defendant concerning 
his experience. 
j As we have intimated above, an allegation that the defendant knew 
I of the deadly tendency of the kerosene was not only unnecessary, but 
I improper. Regina v. Packard, ubi supra. An allegation that the 
kerosene was of a dangerous tendency is superfluous, although similar 
allegations are often inserted in Indictments, it being enough to allege 
the assault, and that death did in fact result from it. It would be 
superfluous in the case of an assault with a staff, or where the death 
resulted from assault combined with exposure. See Commonwealth v. 
Macloon, 101 Mass. 1. See further the second count, for causing 
death b}' exposure, in Stockdale's case, 2 Lewin, 220 ; Eegina v. Smith, 
11 Cox C. C. 210. The instructions to the jury on the standard of skill 
by which the defendant was to be tried, stated above, were as favorable 
to him as he could ask. 

The objection to evidence of the defendant's previous unfavorable 
experience of the use of kerosene is not pressed. The admission of it 
in rebuttal was a matter of discretion. Commonwealth v. Blair, 126 
Mass. 40. Exceptions overruled. 



JOHNSON V. STATE. 
Supreme Court of Ohio. 1902. 

[Reported 66 Ohio St. 59.] 

Price, J. If the conceded facts are sufficient and the charge of the 
trial court sound law to govern the jury in deciding on such facts, the 
plaintiff in error may have been properly punished for very reprehensi- 
ble conduct. That part of the charge contained in the statement of 
the case as well as a subsequent paragraph which we will notice, were 
equivalent to directing a verdict of conviction, inasmuch as there was 
no dispute as to the facts. There was a verdict of conviction and 
a sentence upon the verdict, which the circuit court sustained, and 
thereby must have held that the chai'ge correctly stated the law of the 
tiase. 

The importahce of what is presented as an apparently new doctrine 
in this state, as well as respect for the opinions of both the lower 
courts, have been sufficient reasons for giving the questions involved 
a careful consideration. 



SECT. III.J JOHNSON V. STATE. 315 

The indictment for manslaughter in this, case is in the short form 
authorized by section 7217 of the Revised Statutes, and it charges that 
" Noah Johnson . . . on the twentj'-flfth day of May in the year 
of our Lord one thousand nine hundred and one, in the county of 
Scioto, did unlawfully kill one Emory Barrows then and there being, I 
contrary to the form of the statute," etc. | 

Prior to the codification of the criminal statutes, manslaughter was 
thus defined : " That if any person shall unlawfully kill another without 
malice, either upon a sudden quarrel, or unintentionally while the slayer 
is in the commission of some unlawful act, every such person shall be 
deemed guilty of manslaughter, and on conviction thereof, be pun- 
ished," etc. Vol. 1, S. & C. 403. 

The statute on the subject now is section 6811, Revised Statutes, 
which reads: "Whoever unlawfully kills another, except as provided 
in the last three sections, is guilty of manslaughter, and shall be im- 
prisoned," etc. The preceding sections define murder in the first and 
second degrees. But the present section 9811 is not different in sub- 
stance and meaning from the original section above quoted, and to 
ascertain the elements of the crime of manslaughter we look to the 
original as it stood before codification or revision. Therefore, to con-| 
vict of manslaughter, it is incumbent upon the state to establish that I 
the killing was done "either upon a sudden quarrel, or unintentionally | 
while the slayer was (is) in the commission of some unlawful act." 

It is clear from the facts and the instructions given the jury, 
that Barrows was not ki lled by Johnson in a quarrel ; nor was t.hpi kill- ^ 
ing intentional. Hence, the latter clause 'of the definition of the crime 
is~ttie one to which our investigation should be confined. The state 
was required to show that while the killing was unintentional, it was 
• done by Johnson while he was in the commission of some unlawful act ; 
and the question arises, whether thp UPP'^'Pi''"*'- "^^^ "T ^.cts of the slaver, 
t hough no br each of any law, may be suflBcient to constitute the unlaw s 
ful act designated in rhe statute. Ur, is tfi e state required tn ahnw that 
he was i n the commiss ion ot an act prohibi ted b}'^ law ? 

3tt the time of this homicide there was even no ordinance of the > 
village of Scioto regulating the speed or manner of riding bicycles upon 
its streets. None appears in the record, and we therefore assume there 
was no such ordinance. And it is not claimed that there was any stat- 
ute then in force on that subject. What then is the proper construc- 
tion of the clause " while in commission of some unlawful act " ? ' 

The construction which prevailed in the lower courts is found again 
in a portion of the charge which we quote as the final admonition 
to the jury: "Now, gentlemen, apply these principles to the case and 
determine from the evidence introduced upon the trial whether the de- 
fendant, Noah Johnson, at the time he struck and killed the decedent, 
Emory Barrows, was riding his bicj'cle with gross negligence, and was 
it such as an ordinarily reasonable and prudent person might and rea- 
sonably ought to have foreseen would endanger the lives and safety of 



316 JOHNSOX V. STATE. [CHAP. IV. 

others, and be likely to produce fatal injuries ; and was such killing 
the direct, natural, and proximate result of such negligence? If the 
evidence satisfies j'ou bej^ond a reasonable doubt of all these matters, 
then your verdict should be that the defendant is guilty of manslaughter 
as he stands charged in the indictment ; otherwise you should acquit him.'' 

In this language the trial court told the jury that if the defendant's 
conduct in the manner of riding the bicycle — its speed without signal 
of a bell — was, in their judgment, grossly negligent, it was an unlaw- 
ful act, and they might find that in such conduct he was committing an 
unlawful act, and, if it resulted in the death of Barrows, the rider was 
guilty of manslaughter. And it was left to the jury, and they were 
directed to determine from the evidence whether or not the acts done 
were grossly negligent and regardless of the life and safety of another. 
If so, to convict. 

We have no common law crimes in this stat e. We think such has 
been the uniform understanding of the bar, and the opinion of both the 
judicial and legislative departments of our commonwealth. Before the 
trial of this case there was but one other case brought to our attention 
where the proposition has been called in question. Weller v. The State 
,:of Ohio, 10 Circ. Dec. 381 ; 19 C. C. E. 166. 

f But this court has settled the commonly accepted rule in more than 
one case. In SutclifTe v. The State, 18 Ohio, 469, 477, Justice Avery, 
speaking for the court, says : "There is no common law crime in this 
state, and we therefore look always to the statute to ascertain what is 
the offence of the prisoner, and what is to be his punishment . . ." 
Again on same page : " What is affirmed in this statute of manslaughter 
of the character which this court is intended to reach, except that the 
slayer must be in the commission at the time of some unlawful act ? " 

Also on page 477 : " It is claimed for the plaintiff in error that there • 
is no allegation in the count of the unlawful act designated in the stat- 
ute. It was necessary to allege in the indictment that the person was 
engaged in the commission of some unlawful act. And this allegation, 
it appears to the court, is distinctly made in that part of the indictment 
which charges the prisoner with an assault upon the person killed, 
and unlawfully discharging and shooting oS at him a loaded gun. 
This suflBciently declares an unlawful act . . ." 

As before stated, our statute now provides for a shorter form of in- 
dictment, but it does not dispense with the ingredients of manslaughter, 
as defined in the former statute. 

In Smith v. The State, 12 Ohio St. 466, 469, this court says : " It 
must be borne in mind that we have no common law offences in this 
state. "NTn an^ nr omlssJon. however hurtful or immoral in its tenden- 



cie s, is punishable as a crim e in Ohio, unless s uch a ct or omis sion 
Ts specia H y pnj^inpd nr nr o hibitcd br the otatut a-ia.w o f the sta te. It 
IS, therefore, idle to speculate upon the injurious consequences of per- 
mitting such conduct to go unpunished, or to regret that our criminal 
code has not the expansiveness of the common law." 



SECT. III.] JOHNSON V. STATE. 317 

The same statement of tiie law was again made in Mitchell v. The 
State, 42 Ohio St. 383, and other decisions of this court. 

We think the same rule abides in many, if not all the other states of 
the Union whose legislatures have many codes or systems of statutory 
crimes. It evidently is true of the federal government as settled by 
repeated decisions of the Supreme Court of the United States. United 
States V. Worrall, 2 U. S. (2 Dall.) 384 : United States v. Hudson and 
Goodwin, 11 U. S. (7 Cranch), 32 ; Pennsylvania v. Bridge Co., 54 U. 
S. (43 How.) 518, and later cases in that court. When our legisla- 
ture first enacted statutes upon the subject of homicide and defining its 
different degrees, it did, as to manslaughter, what the state suggests, 
adopted almost literallj' the common law definition. Sutcliffe v. The 
State, 18 Ohio, 469, supra. But when this definition was borrowed 
and adopted by our legislature, it was adopted, not in part, but as 
a whole, and the act committed when the unintentional killing occurs, 
must be a violation of some prohibitory law. The very word " unlaw- 
ful "in criminal jurisprudence means that and nothing less. Surely 
the lef gslatiire did not int.end t.o adopt part of the commonjaffljojaacj'ip- 
tttnToTthe offence as a statutory provision, and le ave"Uie other p art 
to tpe expansivenefeS O f tne common la w. X et, that is practically the 
t'Ull!!Ll'UiJll6n whicti tbe lower courts must have placed upon our statute 
against manslaughter. We assume that the facts show couduct grossly 
negligent in character. There was no malice and no quarrel between 
defendant and the deceased. The killing was unintentional. It was 
inanslaughter nevertheless, if the slayer was then in commission of 
some unlawful act. The jury were told that if in their judgment the 
accused was guilty of gross negligence and a disregard for the lives 
iind safety of others, the state was entitled to a verdict of manslaughter. 
In considering this rather unusual, if not new construction of the law, 
we must not forget a few elementarj' principles of the law of negligence. 
It (negligence) ma}' consist of acts of omission as well as commission ; 
and what may be mere ordinary negligence under one class of circum- 
stances and conditions, may become gross negligence under other con- 
ditions and circumstances. Negligence is the failure to exercise ordinary 
care. Gross negligence may consist in failure to exercise any or very 
slight care. There are other definitions, but these are sufficient now 
for our purpose. So we may truly s&y that negligence differs only 
in degree. With this, we cannot overlook what experience has taught 
for many years, that what may seem ordinary negligence when con- 
templated bj' one mind maj- be regarded bj' another as very gross neg- 
ligence. The inferences drawn from the same facts bj- different minds 
may often greatly differ. Hence, when we look to the case as it 
appeared in the trial court, we see that, without anj- rule of conduct 
prescribed bj' statute to govern the case, the rule for the first time was 
to be established by the verdict of the jury and sentence of the court. 

Up to that time the behavior of the defendant had violated no law. 
It was for the jnrj' to say, under the instructions given, whether the 



318 JOHNSON V. STATE. [CHAP. IV. 

accused had been guilty of gross negligence. If so, although the kill- 
ing was unintentional and free from malice, it was manslaughter. In 
England, the home of the common law and where it attained its won- 
derful growth, and from which we have borrowed to a large extent, it 
became necessary and was permissible to build up, by the pen of law 
writers and adjudged cases, a system of criminal jurisprudence, and 
enforce it until parliament would occupy the ground and supplant it. 
But that country, while so doing, was under no written constitution, 
and ex post facto, or retroactive laws might be laid down hy the courts 
or enacted b^' parliament. Not so in this country where we have a 
written constitution prohibiting retroactive and ex post facto legisla- 
tion. Weeks or months after the negligent acts involved in this case, 
we. have the rule of conduct of the defendant passed upon and defined 
by a verdict upon the all important and indispensable element of man- 
slaughter based on the facts of the case. It is retroactive in its effect. 
An act of the legislature attempting to so operate would be promptly 
held unconstitutional. Can we sustain a construction of our statute 
against manslaughter which will have the same effect? 

I n our judympnt the unlawful act, the commission of which priv es 
Cului' und cbaraeteFto tbe unintentional killing, is an act prohibited by 
\i,\l. and ILal SUCll is th e natural mpa.mng nt t.t\p. rerm ^ r nlanse when 
usod in tih<'--p OTRnce"orcriminal jurisprudeqp e. 

An i ! >ttigf~oBservation is appropriate here : The uncertainty of the 
common law. Some principles which are deemed common law in Ohio 
are not so regarded in other states, and what some of them regard as 
common law we do not recognize as such in Ohio. Therefore, the 
wisdom of enacting a system of penal laws at the beginning of our 
statehood, and of improving and expanding it as fast as conditions of 
society required. The growth of such legislation is itself against the 
holdings of the lower courts. What acts or omissions in early j-ears 
were harmless, owing to the sparsity of population and character of 
property and business then owned and cooducted, afterwards, as popu- 
lation increased and business relations became diversified, became in- 
jurious to others ; and in other respects the good order of society and 
the protection of life and property demanded and received appropriate 
legislation. That department of our state government has kept pace 
with the wrongs, the vices, and immoralities of our social and industrial 
life. It has gone farther, when occasion demanded, and has made 
criminal many acts and omissions which before belonged to the field of 
negligence, as witness, many provisions regarding the management of 
railroads, factories, and mines, and other branches of business where 
labor is employed. Many acts' or omissions to act, which before were 
subject to the charge of negligence, are made penal by statute. And a 
consideration of this course of legislation demonstrates that there is no 
longer a necessity to turn to the common law to find what act or acts 
it is unlawful to commit. 

If the contention of the state in this case is tenable, it is not difficult 



SECT. III.] BEGINA.V. EGAN. ' 319 

to see how the criminal dockets in our courts will soon be flooded. 
The gross negligence of one may unintentionally cause the death of 
many. If such negligence is the commission of an unlawful act, the 
killing of each of the slain becomes a separate crime of manslaughter. 
And so it would proceed, and the cases multiply according to the judg- 
ment of men, as to when the acts of others are or are not grossly negli- 
gent. 

The position is untenable, and we decide that the judgments of the 
common pleas and circuit courts are erroneous and must be reversed, 
and the facts of this case being conceded, as stated herein, the plaintiff 
in error is discharged. Eeversed. 

BuEKET, Davis, and Shadck, JJ., concur. 



REGINA V. EGAN. 
Crown Case Keserved, Victokia. 1897. 

[Reported 23 Vic. L. R. 159.] 

The prisoner was convicted at the April criipinal sittings of the 
court of the manslaughter of her male child, aged about eleven months. 
On the evening of the offence the prisoner had been drinking, and in 
a more or less intoxicated conditi on took the child in to bed, , with her ^, 
ove.rlay_ it, gi nd thus caused its death by suffocation. The presiding 
jiSdge, Hodges , J., directed the jury that if they believed this evidence 
they should find the prisoner guilty. The prisoner was convicted. 
Hodges, J., then reserved for consideration of the Full Court the 
question whether his direction was right. 

Madden, C. J., delivered the judgment of the Court [Madden, C. J., 
Hodges and Hood, JJ.]. We think that the proposition involved 
in this case is too broad, and that, looking at all the circumstances, 
the charge of manslaughter cannot be supported. It a woman has 
made a resolution to kill her child, and, having allowed herseirto be- 
come to some degree drunk, takes it to bed with her, knowing that 
in a heavy sleep she will probably overlie the child — apparently in- 
nocentlj', but at the same time with the intention to destroy the child — 
then that is murder. If . being in the state I have me ntinnfiri^ ghe, 
knowing that she may nyrrhr thFrhildrmti. ^igtiiinrt th" "'il'nnpL or 
disregarding xhe remonstrances o r ner.frlends, takes th e child to bed 
with her and^T ryerlies il, kitting it. that is manslaug hter. Bufthe i 
evidence in this case is to the effect that the defendant had been/ 
drinking, and while under the influence of liquor and after taking the! 
child to bed with her, by an unhappy mischance overlaj- it; this, in ^ 
our opinion, is not sufficient to sustain a charge of manslaughter. 



320 MOESE V. STATE. [CHAP. IV, 



SECTION IV. 
Ooncurrenoe of Offence and Quilty Mind. 

MOESE y. STATE. 

Supreme Court of Errors of Connecticut. 1825. 

[Reported 6 Connecticut, 9.] 

This was an information against the plaintiff in error, for a violation 
of the statute " concerning the students of Yale College," passed in 
May, 1822.^ The information alleged that the defendant, on the 15th 
of January, 1824, gave credit to Washington Van Zandt, then a student 
of Yale College, and under the age of twentj'-one years, for suppers, 
wine and other liquors, to the amount of seven dollars, without the 
knowledge of the parent or guardian of Van Zandt, and without the 
knowledge or consent of the officers of Yale College, or either of them. 
I On the trial before the countj- court the defendant claimed that if 
I credit was given to Van Zandt by any one, it was given by Stephen 
Northam, who was the servant and bar-keeper of the defendant, against 
his express directions ; and that the defendant could not be responsible 
ci'iminally for such act of Northam^ T he court .chars^ p.d the jury th.it 
if t hey should find that the defej ida-nt hnd i^gpntfrl t o Northam's act in 
■"■jving credit to Van Zandt. after the ci:edit _wiLa-2i££n^ % r"" ^'"^ I1ir° 
as if the defendant had i)reYiousiv a.iitaorTzed the giving; of such credit , 
and that the defendant in that case would be liable as principal, the 
same as if he had been present, advising or consenting to the giving of 
such credit.^ 

The jury found the defendant guilty ; who thereupon filed a bill of 

.1 The first section of this act is in these words: " That no person or persons shall 
give credit to any student of Yale College, being a minor, without the consent, in 
writinp, of his parent or guardian, or of such officer or officers of the college as may 
be authorized, by the government thereof, to act in ^uch cases, except for washing or 
medical aid." The 2d section inflicts a penalty Irom $20 to $300 for a violation of the 
law. 

2 Only so much of the case as relates to this point is given. — Ed. 



SECT. IV.] STATE V. MOORE. 321 

exceptions, and brought a writ of error ; which was reserved for the 
advice of the Supreme Court of Errors. 

HosMEE, C. J. From the motion it is fairly to be inferred that no 
credit was given to Van Zandt b}' the defendant ; but by Northam, his 
bar-keeper, only, without the knowledge or consent of Morse, and 
against his express directions. I n the performance of this act. N or- 
t ham was not the d efendant's age nt. He was not authorized to give 
■^he credit, eitK^T'expressly or in the usual course of bis business ; but 
-was prohibited from doing it. Notwithstanding this, which the court 
below impliedly admitted, the jury were charged that if the defendant 
subsequently assented to the acts of Northam he ratified them and 
made them his own. This was an unquestionable error. In the law o f 
•contracts, a p osterior re cognition, in many cases, is equivalent t o a 
precede nt comujd,IK^T "BnE^ it . is not so in respect of crim es. The ds-^ 
J ^jIffffirT^ responsiDle for his own acts, and for the acts of others_ done 
by his express or implied -Com Hiand, , ba t to crimes the maxim Omnis 
ratihahitio retrotrahitur et mandate equiparatur is inapplicable. 

In cases admitting of accessories, a subsequent assent merely would 
mot render a person an accessor}'. Judgment to be reversed. 



STATE V. MOORE. 
Superior Court of Judicature of New Hampshire. 1841. 

[Reported 12 New Hampshire, 42.] 

Indictment fo r break i ng and entering tjie house of Isaac Paddleford, 
at LymaiiTm the night time, on the 19th day of November, 1 840. „ with 
inten t to steal, and stealing therefrom certain pieces of money. 

It appeared in evidencethat the prisoner went to the house, which 
is a pubhc house, and asked for, and obtained lodging for the night, 
and that he took the money from a box in a desk in the bar-room, in 
the course of the night. 

The jury were instructed that upon this indictment the prisoner 
might be convicted of burglary, of entering in the night time and steal- 
ing, or of larceny ; that if the door of the bar-room were shut, and ttie 
prisoner left his own room in the night time, and opened the door of 
the bar-room, or any other door in his way thereto, except his own 
-door, and stole the money, he was guilty of burglary; but that if he 
left his own room in the night, and stole the money from the bar-room. 



322 STATE V. MOOEE. [CHAP. IV. 

■without opening any door on his way the"reto, except his own door, he 
was guilty of entering in the night time and stealing. 

The jury found the prisoner guilty of entering in the night time and 
stealing. 

The counsel for the prisoner contended that under this indictment 
the prisoner could not be convicted of the offence of which he was 
found guiltj'. 

He also contended that the prisoner, being a guest, and having 
entered the house with the assent of the owner, if guilty at all upon 
this evidence, was guilty of larceny only ; and he moved to set aside 
the verdict, and for a new trial, for the reasons aforesaid. 

Gove, Attorne3'-General, for the State. 

Qoodall, for the prisoner. 

Gilchrist, J.^ It is said that, as the prisoner was lawfully in the 
house, he cannot be convicted of the offence of entering in the night 
time with intent to steal. 

It is clear that the prisoner had a legal authority to enter the house, 
without any special permission for that purpose from the owner or 
landlord. If an innkeeper, or other victualler, hangs out a sign, and 
opens his house for travellers, it is an implied engagement to entertain 
all persons who travel that waj' ; and upon this universal assumpsit an 
action on the case will lie against him for damages, if he, without good 
reason, refuses to admit a traveller. 3 Bl. Com. 166. And an indict- 
ment at common law lies against an innkeeper if he refuses to receive 
a guest, he having at that time room in his house. If the traveller 
conducts properly, he is bound to receive him, at whatever hour of the 
night he may arrive. Eex v. Ivens, 7 C. & P. 213. 

An innkeeper, holding out his inn " as a place of accommodation 
for travellers, cannot prohibit persons who come under that character, 
in a proper manner, and at suitable times, from entering, so long as 
he has the means of accommodation for them." Markham v. Brown, 
8 N. H. Eep. 528. As he has authority to enter the house, so he may 
enter anj' of the common public rooms. Markham v. Brown. Ths 
bar-room of an inn is, from universal custom, the most public room in 
the house ; and whether a traveller mav, without permission, enter 
any of the private rooms or not, he has clearly a right to enter the 
bar-room. 

If, after having made an entry into the house by authority of law, he 
commit a trespass, he may be held civilly responsible as a trespasser 
ab initio. This principle has always been recognized since the decision 
of The Six Carpenters' Case, 8 Coke, 290. 

The prisoner, therefore, had a right to enter the inn, and the bar- 



room ; and the~ question afisSg; whether the larceny committed in the 
'^ar-room can relate back, and give a character to^the BTitiTjS ialhe 
house, so as to ma ke \t crirnina.i, ana_j;ae_prigpner puni shable for i t. 

\ Part only of the opinion is given. 



SECT. IV.] STATE V. MOOKE. 323 

upon rp.aarminpj aip^ ila r tn that irhir h i i n n n i vil aftinn , Trniild r r nr l fl ri 
jiim 1jff.^ljr«s a t.rrnpti'irrr ah I'n/ftinn. Except the inference that maj' 
lawfully be made" from the act of^larcen}-, there is no evidence that he 
entered with any illegal purpose, or a felonious intent. 

Where the law invests a person with authority to do an act, the con 
sequences of an abuse of that authority by the party should be seven 
enough to deter all persons from such an abuse. Tint |^gg thin '' pnlir 
of the law " ever been extended to criminal cases ? W^arp nnt, a- 
thatrit has^-^ t-rs~True that. Ill' urU(Jt' to ascertain the intent of the 
accused, the law often regards the nature of the act committed. But 
this is generally such an act as could not have been committed with 
any other than a criminal purpose. Thus, the act of secretly taking 
the property of another, neeessarilj- raises the presumption that the 
partj- intended to steal, and this presumption stands until explained 
by other evidence. In an indictment for breaking, etc., with intent to 
commit a felony, the actual commission is so strong a presumptive 
evidence that the law has adopted it, and admits it to be equivalent to 
a charge of the intent in the indictment. But where one lawfuUj' 
enters a house, it b}- no means follows that because he steals, while 
there, he entered with that purpose. T)ip_grv!^nf stealinc ; is evidep ce 
f ^ ti'T' inte nt to ste al ; but is ha rdly sufBcient to rebut the presumptio n 
that where b e lawful ly ent ered, he entered for a lawful purpos e. To 
"TjoldnthatTwr a lawl'ui entry, a party could be punislied,' Because, after 
such entry, he does an unlawful act, would be to find him guilty of a 
crime by construction ; a result which the law, in its endeavors always 
to ascertain the real intention of the accused, invariably, in theory 
avoids, and which has seldom, in modern times, happened in practice. 

A case is put by Lord Hale, the reasoning of which is analogous to 
that we have used in this case. " It is not a burglarious breaking and 
entry, if a guest at an inn open his own chamber door, and takes and 
carries away his host's goods, for he has a right to open his own door, 
and so not a burglarious breaking." 1 Hale P. C. 553, 554. 

If a burglary could not be committed because the party had a right 
to open his own door, notwithstanding the subsequent larceny, the 
same principle would seem to be applicable here, where the prisoner 
had a right to enter the house, and where, by parity of reasoning, 
v,;o t^.^)^o^>^.-,or.t ]j^,[- cenY would not mak ^ >iia "Hpfinal entry nnlay^ul. 
"For "these reasons, the judgment of the court is that the verdict be 

set aside and a 

Ifew trial granted. 



324 STATE V. ASHER. [CHAP. IV. 



STATE V. ASHER. 
Supreme Court of Arkansas. 1887. 

[Reported 50 Arkansas, 427.] 

At the May term, 1887, of the Phillips Circuit Court, appellees were 
indicted for a violation of section 1645 of Mansfield's Digest, — i. e., 
obtaining money under false pretences ; Asher as principal and Fitz- 
patrick as accessory. It is charged in the indictment that on the 17th 
April, 1885, Asher applied to one J. P. Moore to purchase six mules ; 
that he represented himself as being the absolute owner of the east half 
of lot 251, in the city of Helena; that it was free from incumbrance ; 
that he could give a first lien on same ; that he produced a deed of con- 
veyance from L. A. Fitzpatrick, reciting the full payment of the pur- 
t'hase-monej', and offered to secure the payment of the purchase-money 
of the mules by creating a first lien on said lot ; that Moore sold him 
the mules on a credit to expire Nov. 1, 1885, and took a deed of trust 
on the lot to secure the purchase-money of the mules ; that the deed of 
trust was executed by Asher on the 17th, and was filed for record on 
the 18th, day of April, 1885 ; that the sale of the mules was made on 
the faith of the security afltorded by a first lien on the east half of said 
lot. 

It is further charged that at the time Asher made these representa- 
tions he had already executed to said Fitzpatrick a deed of trust upon 
said east half of said lot, to secure the purchase-money of same, which 
was more than the value of the lot ; that said lot was not free from 
incumbrance ; and that Asher falsely made the representation that he 
could give a first lien on said half-lot to deprive Moore of his property ; 
that Fitzpatrick's deed of trust was filed for record on the 17th daj- ol 
April, 1885. Fitzpatrick is indicted jointly with him as accessory. 

At the November term, 1887, of the court, the defen dant demurr ed 
tothe^indic tment ; the j jen mrrer was sustained , and the State appeals. 

CocKRiLL, 0. J. (after stating the facts as above 'feet forth). To con- 
stitute an offence within the meaning of section 1645, Mansfield's Digest, 
something of value must be obtained by means of a false pretence with 
the intent to defraud. To obtain goods with the inte nt to defrandj ^s 
nntpnnnorh. Th must hp gr^ compiistied bV 0. l'a;teg"prete ncer 

"Eyth e t.prmi=i qf tli e statute the pretence must be false . An dthe doc - 

ti'inpjindniiht^^fllY ia, that, if it ia nnt falpp, though believed to be SO by 
TTifTpprsnn prnplnying it^ it is in/iiffip.iani. 2 Bish. Cr. Law, S. 417. The 

false pretence charged in this case is Asher's representation that the 
mortgage, upon the security of which he got the mules from Moore, 
was the first lien on the land. If the representation is true, there is no 
foundation for this prosecution, however reprehensible Asher's motive 
may have been, because the false pretence would not be established. 
Now, construing all the allegations of the indictment together, is it shown 



SKCT. IV.] STATE V. ASHER. 325 

that the representation was false ? It is charged that Asher had previ- 
ously executed a mortgage to his co-defendant, Fitzpatrick, for the full 
value of the land and that it was the prior lieu ; but it is also charged 
that Fitzpatrick counselled Asher to make the representation that the 
land was free from incumbrance and aided him in obtaining the mules 
from Moore on the faith of it. The demurrer admits that these allega- 
tions are true. Being true, the lega l conclusio n is that Fitzpatri ck 
wa ived the prio rity of his lien and is estopped from asserting it sgainst 
Moore." Scott v. Urbison, 21 Ark. 202 ; Gill v. Hardin, 48 Ark7412'; 
SKTeids V. Smith, 37 Id. 47. 

Asher's representatio n that Moore's mnrtggge^wns thp. prior 1ipn w as 
th'B reiore true.I~ Moore got just what he bargained for, according to the 
-allegations of the indictment, and he has not, therefore, been injured in 
any way. The statutory offence has not been committed. Morgan 
V. State, 42 Ark. 131. It is not, as counsel for the State argues, an 
attempt to have an offence condoned by repairing the injury done in its 
commission. T here has been no crimina.\ offence. 

Moore might nave been injuied by the transaction if Fitzpatrick's 
mortgage-note had been negotiated according to the law merchant and 
assigned to an innocent holder for value before maturity. But there is 
no allegation of the existence of either of these facts, and there is no 
presumption that that state of facts exists. People v. Stone, 11 Wheat. 
182-190. 

AfHrm.^ 



326 m'naghten's case. [chap. 



CHAPTER V. 
CULPABILITY: MODIFYING CIRCUMSTANCES. 



SECTION L 

Insanity. 

M'NAGHTEN'S CASE. 

Answer of the Judges to the House of Lords. 1843. 

^Reported 10 Clark Sf Finnelly, 200.] 

The prisoner had been indicted for the murder of Edward Drum- 
mond.^ The prisoner pleaded '• Not guilty." Evidence having been 
given of the fact of the shooting of Mr. Drummond, and of his death 
in consequence thereof, witnesses were called on the part of the pris- 
oner to prove that he was not, at the time of committing the act, in 
a sound state of mind. ^ 

Lord Chief Justice Tindal (in his charge). The question to b» 
determined is, whether at the time the act in question was committed 
the prisoner had or had not the use of his understanding, so as t? 
know that he was doing a wrong or wicked act. U the jurors sh oul(/ 
be of opinion that th p pvispnpr was npt ap^^fihlp^ a ^the time he com' 
• gifted it , thatje TYg^p vinlnting thgUwa both of God and man. the a 



he wo uld be entitled to a v er dict in his lavor : but If, "on the contrary, 
they were of opinion that when he committed the act he was in » 
sound state of mind, then their verdict must be against him. 

Verdict, Not guilty, on the ground of insanity. 

This verdict, and the question of the nature and extent of the un- 
soundness of mind which would excuse the commission of a felony of 
this sort having been made the subject of debate in the House of 
Lords, it was determined to take the opinion of the judges on the 
law governing such cases. Accordingly the judges attended the 
House of Lords ; when (no argument having been had) questions of 
law were propounded to them. 

Lord Chief Justice Tindal. My Lords, her Majesty's judges 
(with the exception of Mr. Justice Maule, who has stated his opin- 
ion to your Lordships), in answering the questions proposed to them 
by your Lordships' House, think it right, in the first place, to state 

1 The statement of facts in tliia ease has been abridged. 



SECT. I.] M'NAGHTEN'S CASE. 327 

that they have forborne entering into any particular discussion upon 
these questions, from the extreme and almost insuperable difficulty of 
applying those answers to cases in which the facts are not brought 
judicially before them. The facts of each particular case must of 
necessity present themselves with endless variety, and with every 
shade of difference in each case : and as it is their duty to declare the 
law upon each particular case, on facts proved before them, and after 
hearing argument of counsel thereon, they deem it at once impracti- 
cable, and at the same time dangerous to the administration of justice, 
if it were practicable, to attempt to make minute applications of the 
principles involved in the answers given by them to yoar Lordships' 
questions. 

They have therefore confined their answers to the statement of that 
which they hold to be the law upon the abstract questions proposed 
by your Lordships ; and as they deem it unnecessary, in this par- 
ticular case, to deliver their opinions seriatim, and as all concur in 
the same opinion, they desire me to express such their unanimous 
opinion to your Lordships. 

The first question proposed by your Lordships is this : " What is 
the law respecting alleged crimes committed by persons afflicted with 
insane delusion in respect of one or more particular subjects or per- 
sons ; as, for instance, where at the time of the commission of the 
alleged crime the^^Mp|j|Jinew he was acting contrary to law, but did 
'the act eomplainal^Pwith a view, under the influence of insane delu- 
sion, 6f redressing or revenging some supposed grievance or injury, 
or of producing some supposed public benefit?" 

In answer to which question, assuming that your Lordships' in- 
quiries are confined to those persons who labor under such partial 
delusions only, and are not in other respects insane, we are of opinion 
that, nn twit,V|ijt j ji.ading the party accused did the ant domplained of 
with a view, unde r tllf ^"fl"''"''^ "f insane rlelnaion. of red ressing or 
rpvpno-ino; spTTiP. snpposAfl prrifiva. nce Or injury, or of pr oducing some 
public benefit, he is nevertheless Dunis ><f)h1p ann prdin^ to the nat ure 
' of th e crime committed, if he knew at the time of committing su ch 
crime _j hat he was anting- no nt.-^ry in U:w. Iiy which expre.saion we 
understand your Lordships to mean the law of the land. 

Your Lordships are pleased to inquire of us, secondly : " What are 
the proper questions to be submitted to the jury, where a person al- 1 
leged to be afflicted with insane delusion respecting one or morej 
particular subjects or persons is charged with the commission of a 
crime (murder, for example), and insanity is set up as a defence?" 
And, thirdly : " In what terms ought the question to be left to the 
jury as to the prisoner's state of mind at the time when the act was 
committed ? " And as these two questions appear to us to be more 
conveniently answered together, we have to submit our opinion to 
DC, that the jurors ought to be told in all cases that every man is to 
be presumed to be sane, and to possess a sufficient degree of reason 



328 m'naghten's case. [chap. v. 

to be responsible for his crimes, until the contrary be proved to their 
satisfaction; and tha^_t a-estaMish— a. defence on th e p-rnimd of in- 
sani ty, it must be clearly proved that, a t t'^' fa''Tig _of the co mmitting 
of the act, the nartv accusedw aslabori ng nnder sn^n a^jTeT^ecrTif 

' 'reaaoa. from disease of the m md, as not to know the nature and 
"qwthty ol Lhe act he was doingX ^o r^if he did knowTt, ttiat De"^[ iH'not 
•JmSw he was doi ng what was wron g. ^ The mode of putting the 
latter part ot the question to the jury on these occasions has gener- 
ally been, whether the accused at the time of doing the act, knew 
the difference between right and wrong : which mode, though rarely, 
if ever, leading to any mistake with the jury, is not, as we conceive, 
so accurate, when put generally and in the abstract, as when put with 
reference to the party's knowledge of right and wrong in respect to 
the very act with which he is charged. If the question were to be 
put as to the knowledge of the accused solely and exclusively with 
reference to the law of the land, it might tend to confound the jury, 
by inducing them to believe that an actual knowledge of the law of 
the land was essential in order to lead to a conviction , whereas the 
law is administered upon the principle that every one must be taken 
conclusively to know it, without proof that he does know it. If the 
accused was conscious that the act was one which he ought not to do, 
and if that act was at the same time contrary to the law of the land, 
he is punishable ; and tlie usual course therefore has been to leave 
the question to the jury, whether the party accused had a sufficient 
degree of reason to know that he was doing an act that was wrong ; 
and this course we think is correct, accompanied with such observa- 
tions and explanations as the circumstances of each particular case 
may require. 

The fourth question which your Lordships have proposed to us is. 

i this : "If a person under an insane delusion as to existing facts, 
commits an offence in consequence thereof, is he thereby excused?" 
To which question the answer must of course depend on the nature 
of the delusion ; bu t making the satme assumpt ion as we did before, 
namely, that he laTw^s iindp r-sm A pavrifil dpIiTRT firi?! flflly, ind i". not 
in, other respects insan e, we think£ he must be considerpd in the same 

1 " I think that any one wOuld fall within the description in question who was 
deprived by disease affecting the mind of the power of passing a rational judgment on 
the moral character of the act which he meant to do. aiijipose, for instance, that bv 
' reason of disease of the brain a man's mind is filled witli delusions which, if true, 
would not justify or excuse his proposed act, but which in themselves are so wild and 
astonishing as to make it impossible for him to reason about them calmly, or to 
reason calmly on matters connected with them. Suppose, too, that the succession of 
insane thoughts of one kind and another is so rapid as to confuse him ; and finally, 
suppose that his will is weakened by his disease, that he is unequal to the effort of 
calm sustained thought upon any subject, and especially upon subjects connected with 
his delusion ; can he.be said to know or have a capacity of knowing that the act which 
he proposes to do is wrong ? I should say he could not." 2 Stephen Hist. Crim. 
Law, 164. — Ed 



SKCT. I.] REGINA V. HA.YNBS. 329 

situat ion as to respons ibilit y ao if tho fac ta. "^'tTi rpappnt, fi^ -nL biah- the 
(felusione xists were real.^ For example, if under the influence of his 
delusion he supposes another man to be in the act of attempting to 
take away his life, and he kills that man, as he supposes, in self- 
' defence, he would be exempt from punishment. If his delusion was 
that the deceased had inflicted a serious injury to his character and 
fortune, and he killed him in revenge for such supposed injury, he 
would be liable to punishment.' 



EEGINA V. HAYNES. 
Winchester Assizes. 1859. 

[Reported I Foster §• Finlayson, 666.] 

The prisoner, a soldier, was charged with the murder of Mary 
MacGowan, at the camp at Aldershott. 

The deceased was an " unfortunate woman" with whom the prisoner 
had been intimate, and was on the most friendly terms up to the 
moment of the commission of the offence. No motive was assigned 
f or the perpetration of the act ; a nd general evidence was gi^en tiat 
the prisoner, while In Canada, having seduced a young woman under 
a promise of marriage, which he had been unable to fulfil by reason 
of his regiment having been ordered home, his mind had been much 
affected by the circumstance.^ 

Br AM WELL, B., to the jury. As to the defence of insanity set up 
for the prisoner, I will read you what the law is as stated by the judges 
in answer to questions put to them by the House of Lords. {Having 
done so.) It has been uj-ged for the prisoner that you should acquit 
him on the ground that, it being impossible to assign any motive for 
the perpetration of the offence, he must have been acting under what 
is called a powerful and iixeaj gtible influenc e or homicidal tendency. 
But I must remark as to that that the circumstance of an acL being 
apparently motiveless is not a ground trom wnich' yuu can safely in fer 

1 The answer to the fifth question is omitted. Maulb, J. ilelivfered a separate 
opinion, which he prefaced by stating that he felt great difficulty in answering the 
questions : first, because they did not aj)pear to arise out of a particular case, which 
might explain or limit the generality of their terms ; secondly, because he had heard 
no argument on the subject of the questions ; and thirdly, from a fear that the an- 
swers might embarrass the administration of justice, when they should be cited in 
criminal trials. In reply to the first question he said that " to render a person irre- 
sponsible for crime on account of unsoundness of mind, the unsoundness should be 
such as renders him incapable of knowing right from wrong." In reply to the 
second and third questions, he said that the matters referred to in them were entirely 
within the discretion of the judge trying the case. To the fourth question he gave 
the same answer as to the first. ■ — Ed. 

' Part of the case, relating to another point, is omitted. 



330 



COMMONWEALTH V. EOGBES. 



[chap. V. 



tihppTiRt finpp nf rnp h nn infliipn "" Motives exist unknown and innu- 
^nierable which might prompt the act. A morbid and restless (but 
resistible) thirst for blood would itself be a motive urging to snch a 
deed for its own relief ; but if an influence be so powerful as to be 
termed irresistible, so much the more reason is there why we should 
not withdraw any of the safeguards tending to counteract it. There 
are three powerful restraints existing, all tending to the assistance of 
the person who is suffering under such an influence, — ■ the restraint of 
religion, the restraint of conscience, and the restraint of law. But if 
the influence itself be held a legal excuse, rendering the crime dispun- 
ishable, you at once withdraw a most powerful restraint, — ■ that for- 
bidding and punishing its perpetration. "We Tnnst J.hprefore r etnrn to 
the simple question_ you have to deteriq ineT^ did the prisonei-knnw 
thy ua,ture oFlhe act he was doing ; and did he know that he was 

dolna wha i-wiliiUViiuiJw!' Uuiliy. /Sentence, deattc 

The prisoner was reprieved. 



COMMONWEALTH v. KOGEES. 
Supreme Judicial Court of Massachusetts. 1844. 

[Reported 7 Metcalf, 500.] 

The defendant was indicted for the murder of Charles Lincoln, 
Junior, warden of the state prison, on the 15th of June, 1843.^ 

The evidence was full and uncontradicted that the defendant, at 
the time alleged in the indictment, was a prisoner in the state prison, 
and then and there killed the warden of the prison by stabbing him in 
the neck with a knife. The sole^roiad-an-_g^fi]xabe--itef5iii!lant'& 
c ounsp] plippd bin dpfpiiB ft- sLaa t,h nt. 1ip wag ir^ po»^ yrhr n h ° fin iTl'^H 
th^. hmnip.idi;_^ and most of the evidence, on both sides, related to this 
single point. The superintendents of several insane hospitals were 
witnesses in the case, and their testimony tended strongly to prove 
that the defendant, at the time of the homicide, was laboring under 
that species of insanity which is hereinafter commented on by the 
chief justice in the charge of the court to the jury. 

The opinion of the court on the law of the case was given in the 
following charge to the jury by 

Shaw, C. J. In_oi:d£iUia_cQastitBte-a,j;iT me, a person must ha^ e 
mt elligence and_ j3padty^nouglrT;r1trg;v^aZSiminjl^^ and pnr- 
posej^jjafdyf his reason and mental powers areeitheno deticisnt-thnt 
Eelias no will, no conscience or controlling mental power, or if 
through the overwhelming violence of mental disease his intellectual 

1 Part of the case, not involving a question of insanity, is omitted. 



SECT. I.] COMMONWEALTH V. EOGERS. 331 

power is for the time obliterated, he is not a responsible moral agent, 
and is not punishable for criminal acts. 

But these are extremes easily distinguished, and not to be mistaken. 
The difficulty lies between these extremes, in the cases of partial insan- 
ity, where the mind may be clouded and weakened, but not incapable 
of remembering, reasoning, and judging, or so perverted by insane 
delusion as to act under false impressions and influences. In these 
cases, the rule of law, as we understand it, is this : A_aiaji. is hqL to 
b e_excused f ro m responsibility, if he has capacity and reason sufficient 
'to enable him to distinguish between right an d wrong as to the par- 
rfculai' act he Is Lheu d OkuL — a Knowiedsre and consciousness that the 
act he is doing is wrong and criminal, and will subject him to punish- 
ment. In order to be responsible, he must have sufficient power of 
memory to recollect the relation in which he stanfls to others, and in 
which others stand to him ; that the act he is doing is contrary to the 
plain dictates of justice and right, injurious to others, and a violation 
of the dictates of duty. 

On the contrary, although he may be laboring under partial insanity, 
if he still understands the nature and character of his act, and its con- 
sequences ; if he has a knowledge that it is wrong and criminal, and a 
mental power sufficient to apply that knowledge to his own case, and 
to know that, if he does the act he will do wrong and receive pun- 
ishment, — such partial insanity is not sufficient to exempt him from 
responsibility for criminal acts. 

If, then, it is proved, to the satisfaction of the jury, that the mind of 
the accused was in a diseased and unsound state, the question will be 
whether the disease existed to so high a degree that for the time being 
it overwhelmed the reason, conscience, and judgment, arid whether 
the prisoner, in committing the homicide, acted from an irresistible 
and uncontrollable impulse. If so, then the act was not the act of 
a voluntary agent, but the involuntary act of the body, without the 
concurrence of a mind directing it. 

The character of the mental disease relied upon to excuse the accused 
in this case is partial insanity, consisting of melancholy, accompanied 
by delusion. The conduct may be in many respects regular, the mind | 
acute, and the conduct apparently governed by rules of propriety, and 
at the same time there may be insane delusion by which the mind is 
perverted. The most common of these cases is that of monomania, when 
the mind broods over one idea and cannot be reasoned out of it. This 
may operate as an excuse for a criminal act in one of two modes : 
1. Either the delusion is such that the person under its influence has a 
real and firm belief of some fact, not true in itself, but which, if it 
were truepwouia"excuse his act,^ as where the belier is tnat tne party 
killed L<id uu' iinmildlatu 'U'coT^n upon his life, and under that belief 
the insane man kills in supposed self-defence. A common instance is 
where he fully believes that the act he is doing is done by the immedi- 
ate command of God, and he acts under the delusive but sincere belief 



332 COMMONWEALTH V. EOGEES. [CHAP. V. 

that what he is doing is by the command of a superior power which 
supersedes all human laws, and the laws of nature. 2. Or this state 
of delusion indicates to an experienced person that the mind is in a 
diseased state ; that the known tendency of that diseased state of the 
mind is to break out into sudden paroxysms of violence, venting itself 
in homicide or other violent acts towards friend or foe indiscriminately ; 
so that, although there were no previous indications of violence, yet 
the subsequent act, connecting itself with the previous symptoms and 
indications, will enable an experienced person to say that the outbreak 
was of such a character that for the time being it must have overborne 
memory and reason ; that the act was the, result of the disease and 
not of a mind capable of choosing ; in short, that it was the result of 
unc ontrollab lfl impplaoj and not of a person acted upon by motives, 
and governed by tte will. 

The questions, then, in the present case, will be these : 1. Was there 
such a delusion and hallucination? 2. Did the accused act under a 
false but sincere belief that the warden had a design to shut him up, 
andj under that pretext, destroy his life ; and did he take this means 
to prevent it? 3. Are the facts of such a character, taken in connec- 
tion with the opinions of tlie professional witnesses, as to induce the 
jury to believe that the accused had been laboring for several days 
under monomania, attended with delusion ; and did this indicate such, 
a diseased state of the mind that the act of killing the warden was to 
be considered as an outbreak or paroxysm of disease, which for the 
time being overwhelmed and superseded reason and judgment, so that 
the accused was not an accountable agent? 

If such was the case, the accused is entitled to an acquittal ; other- 
wise, as the evidence proves beyond all doubt the fact of killing, 
without provocation, by the use of a deadly weapon, and attended with 
circumstances of violence, cruelty, and barbarity, he must undoubtedly 
be convicted of wilful murder. 

The ordinary presumption is that a person is of sound mind until 
the contrary appears ; and in order to shield one from criminal respon- 
sibility, the presumption must be rebutted by proof of the contrary, 
satisfactory to the jury. Such proof may arise, either out of the evi- 
dence offered by the prosecutor to establish the case against the accused, 
or from distinct evidence, offered on his part ; in either case, it must 
be sufficient to establish the fact of insanity ; otherwise, the presump- 
tion will stand. 

The jury, after being in consultation several hours, came into court, 
and asked instructions upon these two questions : " Must the jury be 
satisfied, beyond a doubt, of the insanity of the prisoner, to entitle 
him to an acquittal ? And what degree of insanity will amount to a 
justification of the offence?" 

In answer to the first of these questions, the chief justice repeated 
his former remarks on the same point, and added that if the prepon- _ 



SECT. I.] STATU V. KIOHARDS. 333 

deran ce of the evidence y gg i" favr»r nf tha ;nco»i;tj ^f ^v.^ p^,-p„,yp,. 
tTiejury would be authorize^o find him insane. In answer to the 
Second question, the chief jujli u u added duLKin g to the instructions 

which he had previously given. 

The jury afterwards returned a verdict of " Not guilty, by reason of 

insanity." ^ 



STATE V. EICHARDS. 
SuPERioK CouKT, Connecticut. 1873. 

[Reported 39 Connecticut, 591.] 

Information for burning a barn ; brought to the Superior Court for 
Windham County and tried to the jury, at its August term, 1873, on 
the plea of not guilty, before Seymour, J. 

The defence was that the prisoner had not sufHcient mental capacitj' 
to be criminally responsible for the act. The charge of the judge, 
which sufficiently states the facts of the case, was as follows : — 

Seymour, J. The evidence seems ample to warrant you in finding 
that the burning complained of was caused b^' the prisoner. Your 
attention has been turned mainly to the question whether the act was 
done with the felonious intent charged, and this question depends 
mainly upon another, whether the accused has sufHcient mental capa 
city to warrant us in imputing to him a felonious intent. 

That he is considerably below par in intellect is apparent to us all 
This is indicated by his countenance and general appearance. 

The same thing is indicated bj' his extraordinar3' conduct at th( 
fire. As the flames were bursting out he was seen on all fours crawl 
ing back from under the burning barn, with no clothing upon hia 
except his shirt and trousers. The day was excessively- cold. He 
remained some half-hour, thus scantily clothed, gazing stupidly at the 
blaze,- until ordered into the house. All this took place in broad day 
light, in plain view of Mr. Gallup's house. 

But itja—t iadoubtedly tr as.-A g the attorney for the state contend s 
that mere inferiority g f inte llect is n o answer to the prosecut ion. Wt 
are, therefore, called upon in this case to decide an interesting and 
difficult question, to wit, whether the accused has suflicient mind to 
be held responsible as a criminal. 

1 "To punish a homicide, committed by the insane victim of such delusion, and 
under its resistless influence,- would be punishing for what every other man in the same 
condition would ever do, in defiance of all penal consequences ; and, therefore, such 
punishment would be useless and inconsistent with the preventive aim of all criminal 
jurisprudence." — Robertson, J., in Smith v. Com., 1 Duv. 224. 

' ' Whether passion or insanity was the ruling force and controlling agency which 
led to the homicide, — in other words, whether the defendant's act was the insane act 
of an unsound mind, or the outburst of violent, reckless, and uncontrolled passion, in 
a mind not diseased, — is the practical question which the jury should be told to deter- 
mine." — Dillon, C. J., in State v, Felter, 25 Iowa, 67- — Ed. 



334 STATE V. KICHAEDS. [CHAP. V. 

He is not a mere Idiot, nor does he appear to be a lunatic. He 

suffers fr om want of m inH raf.hpr thaji-frnm rlprgncrnmnnf- nr rlnliTtfinn, 

atlgTEe~question is whetherJ hfi_gaat»Q£pjn ind is such as to entitle h im 
to acquiEtal on the ground ofwhat_in law isLJac med demg ^tiZ 

This inquiry is attended with inherent difficulties. Our knowledge 
of our own minds is imperfect : our knowledge of the precise mental 
condition of another is necessaril)' still more imperfect. We as triers 
are obliged to rel}' upon the evidence furnished us by witnesses whose 
means of knowledge are limited, and who find great difficulty in com- 
municating to us, on a subject of this nature, what they do know. 

Our principal embarrassment arises, however, from the want of a 
[definite measure of mental capacity. Eminent judges and learned 
commentators have attempted to furnish rules and tests for the guid- 
ance of triers in cases of this kind, but upon examination these rules 
and testa turn out to be imperfect and unsatisfactory. 

It was formerly thought that the jury might properly convict if the 
accused had any sense of right and wrong, or if he was aware that 
punishment would follow the commission of an offence. 

But children of very tender years have some sense of right and 
wrong, and fully understand that punishment will follow transgression. 
Such children are subjected by their parents to discipline, and are by 
gentle punishments restrained from wrong-doing ; but our sense of 
humanity would be greatlj' shocked at the thought of subjecting chil- 
dren to the penalties of statute law because some sense of right and 
wrong and fear of punishment had been developed in them. 

So, again, it is often said in the books that a person is to be deemed 
responsible for crime if he understands the consequences and effects of 
the act laid to his charge. This is undoubtedly and obviously true if 
he has such understanding and appreciation of consequences as per- 
lain to other men. But if he has less of it than is common to men 
ill general, how much less must it be to escape responsibility? 

1 think the accused had some knowledge of the consequences of his 
acts. He probably knew that by igniting a match and throwing it 
into a hay-mow a fire would be kindled and that the barn would 
thereby be consumed. He perhaps also had some appreciation of the 
loss and destruction of property which would ensue. 

But I am not willing to say that some knowledge of consequences, 
however faint and imperfect, is sufficient to warrant you in convictr 
ing the prisoner. I can give you no precise rule, but I think it 
I clear that if the prisoner's perception of consequences and effects 
was only such as is common to children of tender years he ought to 
be acquitted. 

And this leads me to refer to the rule adopted by an eminent Eng- 
lish judge. Lord Hale. He reasoned that, inasmuch as children 
under fourteen years of age are prima facie incapable of crime, im- 
beciles ought not to be held responsible criminally unless of capacity 
equal to that of ordinary children of that age. 



SECT. I.] STATE V. EICHAEDS. 335 

If this test be adopted, the prisoner will upon the testimony be en- 
titled to an acquittal. The princi{)al witnesses for the prosecution say 
that he is inferior in intellect to children of ten years of age, and sev- 
eral very intelligent witnesses for the defence testify that they are 
acquainted with many children of six years who are his superiors in 
mental capacity. 

I am inclined to recommend Lord Hale's rule to your adoption, 
not however without qualifications which I think it important to 
observe. 

And first, this test, like all others which I know of, is imperfect. 

Probably no two of us have the same idea of the capacity of children 
of fourteen years of age ; and then there is this further difficulty, that 
there can be no accurate comparison in detail between the healthy and 
properly balanced, though immature, mind of a child, and the un- 
healthy, abnormal, and shrivelled intellect of an imbecile. The com- 
parison therefore is onl)' of the general result in their respective 
appreciation of right and wrong and of consequences and effects. 

This further consideration ought also to be borne in mind : that 
though in modern times persons under fourteen are seldom subjected 
to the penalties of the criminal code, yet in law children between seven 
and fourteen maj' be subjects of punishment if they are shown to be 
of sufficient capacity to commit crimes. In applying Lord Hale's 
rule therefore, the child to be taken as the standard ought not to be 
one who has had superior advantages of education, but should rather 
be one in humble life, with onh' ordinary training. 

And after all, gentlemen, you see that I can furnish you with no 
definite measure of mental capacity to applj' to the prisoner. ^ The_ 
who le matter must be submitted to your sound judgment. Yon wjK 
say whether the prisoner has such knowled ge of right and wrong, an(J'. 
^uuh ap prnuiatiuii Ot Lhe consequence and effects of his acts, a.s ^fp.n b« 
'aTproper subject of punisbman t. Opinions on this subject have been 
expressed by most of the witnesses who have testified. These opinionii 
depend for their value mainly upon the facts with which they arc; 
connected. You have the advantage ■ of being able to compare with 
each other all the facts which have been brought to your notice bear- 
ing upon the prisoner's mental condition. You will look carefully a'; 
all these facts. The history of the prisoner's life is somewhat signifi- 
cant. From early childhood it has been spent in almhouses, sub- 
jected to constant constraint. In the most ordinary acts of his life he 
has been governed bj' the superior will of others to whose care he 
has been committed. He has, it appears, been seldom left to the 
free guidance of his own judgment. When so left, he seems to have 
acted without forecast, under the pressure of immediate wants and 
impulses. 

If you acquit the prisoner on the ground of want of mental capacity 
you will so say in j'our verdict, in order that the prisoner may in that 
event have the benefit under our statute of a home where he will be 



336 FLANAGAN V. PEOPLE. [CHAP. V. 

kindlj' cared for, but kept under such restraints as to prevent his 
doiug injury to the persons or propert}- of others. 

The jury acquitted the prisoner, stating in their verdict that the 
acquittal was on the ground of want of mental capacitj'.^ 



FLANAGAN v. PEOPLE. 
Court of Appeals or New York. 1873. 

[Reported 52 New York, 467.] 

Andrews, J. The judge, among other things, charged the jury that, 
" to establish a defence on the ground of insanity, it must be clearly 
proven that, at the time of committing the act (the subject of the in- 
dictment), the party accused was laboring under such a defect of reason 
Ifrom disease of the mind as not to know the nature and quality of the 
[act he was doing; and, if he did know it, that he did not know he 
was doing wrong ; " and to this part of the charge the prisoner, by his 
'counsel, excepted. 

The part of the charge excepted to was in the language employed 
by TiNDAL, C. J., in McNaghten's Case, 10 Clarke & Fin. 210, in the 
response of the English judges to the questions put to them by the 
House of Lords as to what instructions should be given to the jury, on 
a trial of a prisoner charged with crime, when the insane delusion of 
the prisoner, at the time of the commission of the alleged act, was 
interposed as a defence. 

All the judges, except one, concurred in the opinion of Tindal, C. J., 
and the case is of the highest authority ; and the rule declared in it has 
been adhered to by the English courts. 

Maule, J., gave a separate opinion, in which he declared that, to 
render a person irresponsible for crime on account of unsoundness of 
mind, the unsoundness should, according to the law, as it has long been 
understood and held, be such as to render him incapable of knowing 
right from wrong. 

In the case of The People v. Bodine, 4 Denio, 9, the language of 
Tindal, C. J., in the McNaghten Case, was quoted and approved ; and 
Beardsley, J., said : " Where insanity is interposed as a defence to an 
indictment for an alleged crime, the inquiry is always brought down 
to the single question of a capacity to distinguish between right and 
wrong at the time the act was done." 

The rule was reaffirmed in the case of Willis v. The People, 32 N. Y., 
717, and it" must be regarded as the settled law of this State, that the 
test of responsibility for criminal acts, where unsoundness of mind is 
interposed as a defence, is the capacity of the defendant to distinguisii 

» See Wartena v. State, 105 InJ. 445, 5 N. E. iiO. — xuD. 



SECT. I,'' PARSONS V. STATE. 337 

between right and wrong at the time of and with respect to the act 
which is the subject of the inquiry. 

We_are_a sked in this case to i n troduce a new element into the m l^ 
of criminal responsibility in cases of alleged insanity, and to hold th at 
tlfe puwer of choosing right from wrong is as essential to legal respon - 
-as-iiie "capacity ofTistinguishing between them ; and that the 
"ot tiie tormer is consistent with tne presence of the latter. 

The argument proceeds upon the theory that there is a form of 
insanity in which the faculties are so disordered and deranged that a 
man, though he perceives the moral quality of his acts, is unable to 
control them, and is urged by some mysterious pressure to the com- 
mission of acts, the consequences of which he anticipates but cannot 
avoid. 

Whatever medical or scientific authority there may. be for this view, 
it has not been accepted by courts of law. 

The vagueness and uncertaint)- of the inquiry which would be opened, 
und the manifest danger of introducing the limitation claimed into the 
rule of responsibility in cases of crime, may well cause courts to pause 
l)efore assenting to it. 

Indulgence in evil passions weakens the restraining power of the 
will and conscience ; and the rule suggested would be the cover for the 
commission of crime and its justification. T j^ ejinc t rinr that Oi pr infiififil 
ant may be excused upon the n otion of an irresistible impulse to com- 
mit i t, where the offender has the aoility to aiscover nis legal ana nigr al 
•—flutymrespect to it, ha s no place in the law. Rolfe, B., in Rogers v. 
Allunt, where, on ttie trial of an indictment for poisoning, the defend- 
ant was alleged to have acted under some moral influence which he 
could not resist, said : " Every crime was committed under an influence 
of such a description ; and the object of the law was to compel people 
to control these influences." 

Judgment affirmed. 



PARSONS V. STATE. 
Supreme Court of Alabama. 1886. 

[Reported 81 Ala. 577.] 

SoMEEViLLE, J.^ In this case the defendants have been convicted of 
the murder of Bennett Parsons, by shooting liim with a gun, one of the 
defendants being the wife and the other the daughter of the deceased. 
The defence set up in the trial was the plea of insanit}', the evidence 
tending to show that the daughter was an idiot, and the mother and 
wife a lunatic, subject to insane delusions, and that the killing on her 
part was the offspring and product of those delusions. 

1 Part only of the opinion is given. The dissenting opinion of Stone, C. J., is 
omitted. 



338 PARSONS V. STATE. [CHAP. V. 

The rulings of the court raise some questions of no less difficult}' 
than of interest, for, as observed by a distinguished American judge, 
"of all medico-legal questions, those connected with insanity are the 
most difficult and perplexing." (Per Dillon, C. J., in State v. Felter, 
25 Iowa, 67.) It has become of late a matter of comment among intel- 
ligent men, including the most advanced thinkers in the medical and 
legal professions, that the deliverances of the law courts on this branch 
of our jurisprudence have not heretofore been at all satisfactory, either 
in the soundness of their theories, or in their practical application. 
The earliest English decisions, striving to establish rules and tests on 
the subject, including alike the legal rules of criminal and civil respon- 
sibility, and the supposed tests of the existence of the disease of insanity 
itself, are now admitted to have been deplorably erroneous, and, to say 
nothing of their vacillating character, have long since been abandoned. 
The views of the ablest of the old text writers and sages of the law 
were equally confused and uncertain in the treatment of these subjects, 
Sind they are now entirelj' exploded. Time was in the history of our 
laws that the veriest lunatic was debarred from pleading his providen- 
tial affliction as a defence to his contracts. It was said, in justification 
of so absurd a rule, that no one could be permitted to stultify himself 
by pleading his own disability. So great a jurist as Lord Coke, in his 
attempted classification of madmen, laid down the legal rule of criminal 
responsibility to be that one should " wholly have lost his memory and 
understanding ; " as to which Mr. Erskine, when defending Hadfield 
for shooting the king, in the jear 1800, justly observed : ''No such 
madman ever existed in the world." After this great and historical 
case, the existence of delusion promised for a while to become the 
sole fest of insanity, and acting under the duress of such delusion was 
recognized in effect as the legal rule of responsibility. Lord Kenyon, 
after ordering a verdict of acquittal in that case, declared with empha- 
sis that there was " no doubt on earth " the law was correctly stated in 
the argument of counsel. But, as it was soon discovered that insanity 
often existed without delusions, as well as delusions without insanity, 
this view was also abandoned. Lord Hale had before declared that the 
rule of responsibility was measured by the mental capacity possessed 
by a child fourteen j-ears of age ; and Mr. Justice Tracj', and other 
judges, had ventured to decide that, to be non-punishable for alleged 
acts of crime, "a man must be totally deprived of his understanding 
and memory, so as not to know what he was doing, no more than an 
infant, a brute, or a wild beast." (Arnold's Case,, 16 How. St. Tr. 
764.) All these rules have necessarilj- been discarded in modern times 
in the light of the new scientific knowledge acquired by a more thor- 
ough study of the disease of insanit}-. In Belhngham's Case, decided 
in 1812 by Lord Mansfield at the Old Bailey (Coll. on Lun. 630), the 
test was held to consist in a knowledge that murder, the crime there 
committed, was "against the laws of God and nature," thus meaning 
an ability to distinguish between right and wrong in the abstract. 



SECT. I.J PAllSONS V. STATE. 339 

This rule was not adhered to, but seems to have been modified so as to 
malce the test rather a knowledge of right and wrong as applied to the 
particular act. (Lawson on Insanit}', 231, § 7 e« seq). The great lead- 
ing case on the subject in England is McNaghten's Case, decided in 
1843 before the English House of Lords, 10 CI. & F. 200 ; s. c, 2 Law- 
son's Cr. Def. 150. It was decided by the judges in that case that, in 
order to entitle the accused to acquittal, it must be clearh' proved that, 
at the time of committing the offence, he was laboring under such a 
defect of reason, from disease of the mind, as not to know the nature and 
quality of the act he was doing, or, if he did, not to know that what he 
was doing was wrong. This rule is commonly supposed to have here- 
tofore been adopted by this court, and has been followed by the general 
current of American adjudications. Boswell v. The State, 63 Ala. 307 ; 
s. c. 35 Amer. Eep. 20 ; s. c. 2 Lawson's Cr. Def. 352 ; McAllister v- 
State, 17 Ala. 434 ; Lawson on Insanity, 219-221 ,231. 

In view of these conflicting decisions, and of the new light thrown 
on the disease of insanity by the discoveries of modern psychological 
medicine, the courts of the country may well hesitate before blindly 
following in the unsteady footsteps found upon the old sandstones of 
our common law jurisprudence a century ago. The trial court, with 
prudent propriety, followed the previous decisions of this court, the cor- 
vectness of which, as to this subject, we are now requested to review. 

We do not hesitate to say that we re-open the discussion of this 
subject with no little reluctance, having long hesitated to disturb our 
past decisions on this branch of the law. Nothing could induce us to 
do so except an imperious sense of duty, which has been excited by 
a protracted investigation and study, impressing our rainds with the 
conviction that the law of insanity as declared by the courts on many 
points, and especiall}' the rule of criminal accountability, and the as- 
sumed tests of disease to that extent which confers legal irresponsi- 
bility, have not kept pace with the progress of thought and discovery 
in the present advanced stages of medical science. Though science 
has led the way, the courts of England have declined to follow, as 
shown by their adherence to the rulings in McNaghten's Case, em- 
phasized by the strange declaration made by the Lord Chancellor of 
England, in the House of Lords, on so late a day as March 11, 1862, 
that "the introduction of medical opinions and medical theories into 
this subject has proceeded upon the vicious principle of considering 
insanity as a disease 1 " 

It is not surprising that this state of affairs has elicited from a 
learned law writer, who treats of this subject, the humiliating declara- 
tion that, under the influence of these ancient theories, " the memorials 
of our jurisprudence are written all over with cases in which those 
who are now understood to have been insane have been executed as 
criminals.'' 1 Bish. Cr. Law (7th ed.) § 390. There is good reason, 
both for this fact and for the existence of unsatisfactory rules on tliis 
•subject. In what we say we do not intend to give countenance to ao- 



340 PAKSONS V. STATE. [CHAP. V. 

quittals of criminals, frequent examples of which have been witnessed 
in modern times, based on the doctrine of moral or emotional insanity, 
unconnected with mental disease, which is not yet suflSciently supported 
by psychology, or recognized by law as an excuse for crime. Boswell's 
case, supra; 1 Whar. Cr. Law (9th ed.), § 43. 

In ancient times lunatics were not regarded as "unfortunate suffer- 
ers from disease, but rather as subjects of demoniacal possession, or as 
self-made victims of evil passions." They were not cared for humanely 
in asylums and hospitals, but were incarcerated in jails, punished with 
chains and stripes, and often sentenced to death by burning or the 
gibbet. When put on their trial, the issue before the court then was 
not as now. If acquitted, they could only be turned loose on the com- 
munity to repeat their crimes without molestation or restraiiit. They 
could not be committed to hospitals, as .at the present day, to be kept 
in custody, cared for by medical attention, and often cured. It was not 
until the beginning of the present century that the progress of Christian 
civilization asserted itself by the exposure of the then existing bar- 
barities, and that the outcry of philanthropists succeeded in eliciting 
an investigation of the British Parliament looking to their suppression. 
Up to that period the medical treatment of the insane is known to have 
been conducted upon a basis of ignorance, inhumanity, and empiricism. 
Amer. C3'clop8edia, vol. ix. (1874), title. Insanity. Being punished for 
wickedness, rather than treated for disease, this is not surprising. The 
exposure of these evils not onl}' led to the establishment of that mos 
beneficent of modern civilized charities, the Hospital and Asylum for 
the Insane, but also furnished hitherto unequalled opportunities to the 
medical profession of investigating and treating insanity on the path- 
ological basis of its being a disease of the mind. Under these new 
and more favorable conditions the medical jurisprudence of insanity 
has assumed an entirely new phase. The nature and exciting causes of 
the disease have been thoroughly studied and more fully comprehended. 
The result is that the "right and wrong test," as it is sometimes called, 
which, it must be remembered, itself originated with the medical pro- 
fession, in the mere dawn of the scientific knowledge of insanity, has 
been condemned by the great current of modern medical authorities, 
who believe it to be "founded on an ignorant and imperfect view of 
the disease." Encyc. Brit. vol. xv. (9th ed.), title. Insanity. 

The question then presented seems to be whether an old rule of 
legal responsibility shall be adhered to based on theories of physicians 
promulgated a hundred years ago, which refuse to recognize an}- evi- 
dence of insanity except the single test of mental capacity to dis- 
tinguish right and wrong, or whether the courts will recognize as a 
possible fact, if capable of proof by clear and satisfactory testimonj', 
the doctrine, now alleged bj' those of the medical profession who have 
made insanity a special subject of investigation, that the old test is 
wrong, and that there is no single test by which the existence of the 
disease, to that degree which exempts from punishment, can in every 



SECT. I.] PARSONS V. STATE. 341 

case be infallibly detected. The inqiiirj' must not be unduly obstructed 
by the doctrine of stare decisis, for the life of the common law system 
and the hope of its permanency consist largely in its power of adap- 
tation to new scientific discoveries, and the requirements of an ever 
advancing civilization. There is inherent in it the vital principle of 
juridical evolution, which preserves itself by a constant struggle for 
approximation to the highest practical wisdom. It is not like the laws 
of the Medes and Persians, which could not be changed. In establish- 
ing any new rule, we should strive, however, to have proper regard for 
two opposite aspects of the subject, lest, in the words of Lord Hale, 
"on one side there be a kind of inhumanity towards the defects of 
human nature ; or, on the other, too great indulgence to great crimes." 

It is everywhere admitted, and as to this there can be no doubt, 
that an idiot, lunatic, or other person of diseased mind, who is afflicted 
to such extent as not to know whether he is doing right or wrong, is 
not punishable for anj' act which he may do while in that state. 

Can the courts justly saj', however, that the only test or rule of 
responsibilit}' in criminal cases is the power to distinguish right from 
wrong, whether in the abstract, or as applied to the particular case ? 
Or may there not be insane persons of a diseased brain, who, while 
capable of perceiving the difference between right and wrong, are, as 
matter of fact, so far under the duress of such disease as to destroj' the 
power to choose between right and wrong? Will the courts assume as 
a fact, not to be rebutted by an}- amount of evidence, or any new dis- 
coveries of medical science, that there is, and can be, no such state of 
the mind as that described by a writer on psychological medicine, as 
one " in which the reason has lost its empire over the passions, and the 
actions b}' which they are manifested, to such a degree that the indi- 
vidual can neither repress the former, nor abstain from the latter" ? 
Dean's Med. Jur. 497. 

Much confusion can be avoided in the discussion of this subject h\ 
separating the dutj' of the jury from that of the court in the trial of a 
case of this character. The province of the jury is to determine facts, 
that of the court to state the law. The rule in McNaghten's Case arro- 
gates to the court, in legal effect, the right to assert, as matter of law, 
the following propositions : — 

1. That there is but a. single test of the existence of that degree of 
insanity, such as confers irresponsibility for crime. 

2. That there does not exist an}' case of such insanity in which that 
single test — the capacity to distinguish right from wrong — does not 
appear. 

3. That all other evidences of alleged insanity, supposed by physicians 
and experts to indicate a destruction of the freedom of the human will 
and the irresistible duress of one's actions, do not destroy his mental 
capacity to entertain a criminal intent. 

The whole difficulty, as justly said by the Supreme Judicial Court of 
New Hampshire, is that "courts have undertaken to declare that to 



342 , PARSONS V. STATE. [CHAP. V. 

be law which is matter of fact." " If" observes the same court, " the 
tests of insanitj- are matters of law, the practice of allowing experts 
to testify what the3- are should be discontinued ; if they are matters 
of fact, the judge should no longer testify without being sworn as a 
witness, and showing himself to be qualified to testify as an expert." 
State V. Pike, 49 N. H. 399. 

We first consider what is the proper legal rule of responsibility in 
criminal cases.- 

No one can deny that there must be two constituent elements of legal 
responsibility in the commission of every crime, and no rule can be just 
and reasonable which fails to recognize either of them : (1) capacity 
of intellectual discrimination ; and (2) freedom of will. Mr. Wharton, 
after recognizing this fundamental and obvious principle, observes : 
"If there be either incapacitj- to distinguish between right and wrong 
as to the particular act, or delusion as to the act, or inability to refrain 
from doing the act, there is no responsibility." 1 Whar. Cr. Law (9th 
ed.), § 33. Says Mr. Bishop, in discussing this subject: "There can- 
not be, and there is not, in any locality, or age, a law punishing men 
for what they cannot avoid." 1 Bish. Cr. Law (7th ed.), § 3835. 

If, therefore, it be true, as matter of fact, that the disease of insanity 
can, in its action on the human brain through a shattered nervous 
organization, or in any other mode, so aflfect the mind as to subvert 
the freedom of the will, and thereby destroy the power of the victim to 
choose between the right and wrong, although he perceive it, — by which 
we mean the power of volition to adhere in action to the right and abstain 
from the wrong, — is such a one criminally responsible for an act done 
under the influence of such controlling disease ? We clearly think not ; 
and such we believe to be the just, reasonable, and humane rule towards 
which all the modern authorities in this country, legislation in England, 
and the laws of other civilized countries of the world, are gradually, but 
surely tending, as we shall further on attempt more fully to show. 

We next consider the question as to the probable existence of such a 
disease, and the test of its presence in a given case. 

It will not do for the courts to dogmatically deny the possible exist- 
ence of such a disease, or its pathological and psj'chical effects, because 
this is a matter of evidence, not of law, or judicial cognizance. Its 
existence, and effect on the mind and conduct of the patient, is a ques- 
tion of fact to be proved, just as much as the possible existence of 
cholera or yellow fever formerly was before these diseases became the 
subjects of common knowledge, or the effects of delirium from fever, or 
intoxication from opium and alcoholic stimulants would be. The courts 
could, with just as much propriety years ago, have denied the existence 
of the Copernican system of the universe, the eflScacy of steam and 
electricity as a motive power, or the possibility of communication in a 
few moments between the continents of Europe and America by the 
magnetic telegraph, or that of the instantaneous transmission of the 
human voice from one distant city to another by the use of the tele- 



SECT. I."] PAKSONS V. STATE, 343 

phone. These are scientific facts, first discovered by experts before 
becoming matters of common knowledge. So, in like manner, must be 
every other unknown scientific fact, in whatever profession or depart- 
ment of knowledge. The existence of such a cerebral disease as that 
which we have described is earnestly alleged by the superintendents of. 
insane hospitals and other experts who constantly have experimental 
dealings with the insane, and they are permitted every day to so testify 
before juries. The truth of their testimony — or what is the same thing, 
the existence or non-existence of such a disease of the mind — in/ each 
particular case, is necessarily a matter for the determination of the jury 
from the evidence. 

So it is equally obvious that the courts cannot, upon any sound prin- 
ciple, undertake to saj' what are the invariable or infallible tests of such 
disease. The attempt has been repeatedly made, and has proved a 
confessed failure in practice. " Such a test," says Mr. Bishop, " has 
never been found, not because those who have searched for it have not 
been able and diligent, but because it does not exist." 1 Bish. Cr. Law 
(7th ed.), § 381. In this conclusion, Dr. Eay, in his learned work on 
the Medical Jurisprudence of Insanity, fully concurs. Bay's Med. Jur. 
Ins. p. 39. The symptoms and causes of insanity are so variable, and 
its pathology so complex, that no two cases may be just alike. " The 
fact of its existence," says Dr. Ray, " is never established by any single 
diagnostic symptom, but by the whole body of symptoms, no particular 
one of which is present in every case." Ray's Med. Jur. of Ins. § 24. 
Its exciting causes being moral, psychical, and physical are the especial 
subjects of specialists' study. What effect may be exerted on the given 
patient by age, sex, occupation, the seasons, personal surroundings, 
hereditary transmission, and other causes is the subject of evidence 
based on investigation, diagnosis, observation, and experiment. Pecu- 
Uar opportunities, never before enjoyed in the history of our race, are 
offered in the present age for the ascertainment of these facts, by the 
establishment of asylums for the custody and treatment of the insane, 
which Christian benevolence and statesmanship have substituted for 
jails and gibbets. The testimony of these experts — differ as they may 
in many doubtful cases — would seem to be the best which can be 
obtained, however unsatisfactory it may be in some respects. 

In the present state of our law, under the rule in McNaghten's 
Case, we are confronted with this practical difficulty, which itself demon- 
strates the defects of the rule. The courts in effect charge the juries, 
as matter of law, that no such mental disease exists as that often 
testified to by medical writers, superintendents of insane hospitals, and 
other experts, — that there can be as matter of scientific fact no cere- 
bral defect, congenital or acquired, which destroys the patient's power 
of self-control, his libertj' of will and action, provided only he retains 
a mental consciousness of right and wrong. The experts are immedi- 
ately put under oath, and tell the juries just the contrary, as matter of 
evidence ; asserting that no one of ordinary, intelligence can spend an 



344 PARSONS V. STATE. [CHAP. V. 

hour in the wards of an insane asylum without discovering such cases, 
and in fact that " the whole management of such asylums presupposes 
a knowledge of right and wrong on the part of their inmates." Guy & 
F. on Forensic Med. 220. The result in practice, we repeat, is that 
.the courts charge one way, and the jury, following an alleged higher 
law of humanitj', find another in harmony with the evidence. 

In Bucknill on Criminal Lunacy, p. 59, it is asserted as " the result 
of observation and experience, that in all lunatics and in the most 
degraded idiots, whenever manifestations of any mental action can be 
educed, the feeling of right and wrong may be proved to exist." 

" With regard to this test," says Dr. Russell Reynolds, in his work 
on "The Scientific Value of the Legal Tests of Insanity," p. 34 
(London, 1872), "I may say, and most emphatically, that it is utterly 
untrustworthy, because untrue to the obvious facts of Nature." 

In the learned treatise of Drs. Bucknill and Tuke on " Psychological 
Medicine," p. 269 (4th ed. London, 1879), the legal tests of respon- 
sibility are discussed, and the adherence of the courts to the right and 
wrong test is deplored as unfortunate, the true principle being stated to 
be " whether, in consequence of congenital defect or acquired disease, 
the power of self-control is absent altogether, or is so far wanting as to 
render the individual irresponsible." It is observed by the authors : 
"As has again and again been shown, the unconsciousness of right 
and wrong is one thing, and the powerlessness through cerebral defect 
or disease to do right is another. To confound them in an asj'lum 
would have the effect of transferring a considerable number of the 
inmates thence to the treadmill or the gallows." 

Dr. Peter Bryce, Superintendent of the Alabama Insane Hospital for 
more than a quarter-century past, alluding to the moral and disciplinar}^ 
treatment to which the insane inmates are subjected, observes : " They 
are dealt with in this institution, as far as it is practicable to do so, as 
rational beings ; and it seldom happens that we meet with an insane 
person who cannot be made to discern, to some feeble extent, his duties 
to himself and others, and his true relations to societj'." Sixteenth 
Annual Rep. Ala. Insane Hosp. (1876), p. 22; Biennial Rep. (1886), 
pp. 12-18. 

Other distinguished writers on the medical jurisprudence of insanity 
have expressed like views, with comparative unanimity. And nowhere 
do we find the rule more emphatically condemned than by those who 
have the practical care and treatment of the insane in the various 
lunatic asylums of every civilized country. A notable instance is found 
in the following resolution unanimously passed at the annual meeting 
of the British Association of medical oflacers of Asylums and Hospitals 
for the insane, held in London, July 14, 1864, where there were present 
fifty- four medical officers : — 

" Resolved, That so much of the legal test of the mental condition of 
an alleged criminal lunatic as renders him a responsible agent, because 
he knows the difference between right and wrong, is inconsistent with 



SECT. I.] PARSONS V. STATE. 345 

the fact, well known to every member of this meeting, that the power 
of distinguishing between right and wrong exists very frequently in 
those who are undoubtedly insane, and is often associated with dan- 
gerous and uncontrollable delusions." Judicial Aspects of Insanity 
(Ordronaux, 1877), 423-424. 

These testimonials as to a scientific fact are recognized by intelligent 
men in the affairs of every-day business, and are constantly acted on 
by juries. They cannot be silently ignored by judges. Whether estab- 
lished or not, there is certainly respectable evidence tending to establish 
it, and this is all the courts can require. 

Nor are the modern law writers silent in their disapproval of the 
alleged test under discussion. It meets with the criticism or condem- 
nation of the most respectable and advanced in thought among them, 
the tendency being to incorporate in the legal rule of responsibility 
" not only the knowledge of good and evil, but the power to choose the 
one, and refrain from the other." Browne's Med. Jur. of Insanity, 
§§ 13 et seq., § 18 ; Ray's Med. Jur. §§ 16-19 ; Whart. & Stilles' Med. 
Jur. § 59; 1 Whart. Cr. Law (9th ed.), §§ 33, 43, 45; 1 Bish. Cr. 
Law (7th ed.), § 386 et seq.; Judicial Aspects of Insanity (Ordronaux), 
419 ; I.Green. Ev. § 372 ; 1 Steph. Hist. Cr. Law, § 168 ; Amer. Law 
Rev. vol. iv. (1869-70), 236 et seq. 

The following practicable suggestion is made in the able treatise 
of Balfour Browne above alluded to; "In a case of alleged insanity, 
then," he says, " if the individual suffering from enfeeblement of intel- 
lect, delusion, or any other form of mental aberration, was looked upon 
as, to the extent of this delusion, under the influence of duress (the 
dire duress of disease) , and in so far incapacitated to choose the good 
and eschew the evil, in so far, it seems to us," he continues, " would 
the requirements of the law be fulfilled ; and in that way it would afford 
an opening, by the evidence of experts, for the proof of the amount of 
self-duress in each individual case and thus alone can the criterion of 
law and the criterion of the inductive science of medical psychology 
be tnade to coincide." Med. Jur. of Ins. (Browne), § 18. 

This, in our judgment, is the practical solution of the difHculty before 
us, as it preserves to the courts and the juries, respectively, a harmo- 
nious field for the full assertion of their time-honored functions. 

So great, it may be added, are the embarrassments growing out of 
the old rule, as expounded by the judges in the House of English Lords, 
that, in March, 1874, a bill was brought before the House of Commons, 
supposed to have been drafted by the Jearned counsel for the Queen, 
Mr. Fitzjames Stephen, which introduced into the old rule the new 
element of an absence of the power of self-control, produced by diseases 
affecting the mind ; and this proposed alteration of the law was cordially 
recommended by the late Chief Justice Cockburn, his only objection 
being that the principle was proposed to be limited to the case of homi- 
cide. 1 Whart. Cr. Law (9th ed.), § 45, p. 66, note 1 ; Browne's Med 
Jur. of lusan. § 10, note 1. 



346 PAKSONS V. STATE. [CHAP. V. 

There are many well considered cases which support these views.' 

The law of Scotland is in accord with the English law on this subject, 
as might well be expected. The Criminal Code of Germany, however, 
contains the following provision, which is said to have been the formu- 
lated result of a very able discussion both by the physicians and lawyers 
of that country: "There is no criminal act when the actor at the 
time of the offence is in a state of unconsciousness, or morbid disturb- 
ance of the mind, through which the free determination of his will is 
excluded." Encyc. Brit. (9th ed.), vol. ix. p. 112 ; citing Crim. Code of 
Germany (§ 51, E. G. B.). 

The Code of France provides : " There can be no ci'ime or offence if 
the accused was in a state of madness at the time of the act." For 
some time the French tribunals were inclined to interpret this law in 
such a manner as to follow in substance the law of England. But that 
construction has been abandoned, and the modem view of the medical 
profession is now adopted in that country. 

It is no satisfactor}' objection to say that the rule above' announced 
by us is of difficult application. The rule in McNaghten's Case, supra, 
is equall3' obnoxious to a like criticism. The difficulty does not lie in 
the rule, but is inherent in the subject of insanitj' itself. The practical 
trouble is for the courts to determine in what particular cases the party 
on trial is to be transferred from the categor3' of sane to that of insane 
criminals, — where, in other words, the border line of punishability is 
adjudged to be passed. But, as has been said in reference to an every- 
day fact of Nature, no one can saj' where twilight ends or begins, but 
there is ample distinction nevertheless between day and night. We 
think we can safely rely in this matter upon the intelligence of our 
juries, guided by the testimony of men who liave practically made a 
study of the disease of insanity, and enlightened by a conscientious 
desire, on the one hand, to enforce the criminal laws of the land, and 
on the other, not to deal harshly with any unfortunate victim of a 
diseased mind, acting without the light of reason, or the power of 
volition. 

It is almost needless to add that where one does not act under the 
duress of a diseased mind, or insane delusion, but from motives of 
anger, revenge, or other passion, he cannot claim to be shielded from 
punishment for crime on the ground of insanity. Insanity proper is 
more or less a mental derangement, coexisting often, it is true, with a 
disturbance of the emotions, affections, and other moral powers. A 
mere moral, or emotional insanity, so-called, unconnected with disease 
of the mind, or irresistible impulse resulting from mere moral obliquity, 
or wicked propensities and habits, is not recognized as a defence to 
crime in our courts. 1 Whar. Cr. Law (9th ed.), § 46 ; Boswell v. State, 
63 Ala. 307, 35 Amer. Rep. 20 ; Ford v. State, 71 Ala. 385. 

The charges refused by the court raise the question as to how faf 

1 The consideration of certain authorities on the subject is omitted. 



•SECT. I.] PARSONS V. STATE. 347 

one acting under the influence of an insane delusion is to be exempted 
from criminal accountabilitj'. The evidence tended to show that one of 
the defendants, Mrs. Nanc}' J. Parsons, acted under the influence of 
an insane delusion that the deceased, whom she assisted in killing, 
possessed supernaturalkpower to afflict her with disease, and to take 
her life by some " supernatural trick ; " that by means of such power 
the decea,sed had caused defendant to be in bad health for a long 
time, and that she acted under the belief that she was in great danger 
of the loss of her life from the conduct of deceased operating by means 
of such supernatural power. 

The rule in McNaghten's Case, as decided by the English judges, and 
supposed to have been adopted by the court, is that the defence of 
insane delusion can be allowed to prevail in a criminal case only when 
the imaginary state of facts would, if real, justify or excuse the act ; 
or, in the language of the English judges themselves, the defendant 
" must be considered in the same situation as to responsibility, as if 
the facts with respect to which the delusion exists were real." Boswell's 
case, 63 Ala. 307. It is apparent, from what we have said, that this 
rule cannot be correct as applied to all cases of this nature, even limiting 
it, as done by the English judges, to cases where one "labors under 
partial delusion, and is not in other respects insane." McNaghten's 
€ase, 10 CI. & F. 200 ; s. c. 2 Lawson's Cr. Def. 150. It holds a par- 
tially insane person as responsible as if he were entirely sane, and it 
ignores the possibility of crime being committed under the duress of an 
insane delusion, operating upon a human mind, the integrity of which 
lis destroyed or impaired by disease, except, perhaps, in cases where 
the imaginary state of facts, if real, would excuse or justify the act 
done under their influence. Fields' Med. Leg. Guide, 101-104 ; GuV 
& F. on Forensic Med. 220. If the rule declared by the English judges 
be correct, it necessarily follows that the only possible instance o£ 
excusable homicide in cases of delusional insanity would be where the 
delusion, if real, would have been such as to create, in the mind of a 
reasonable man, a just apprehension of imminent peril to life or limb. 
The personal fear, or timid cowardice of the insane man, although 
•created by disease acting through a prostrated nervous organization, 
would not excuse undue precipitation of action on his part. Nothing 
would justify assailing his supposed adversary except an overt act, or 
demonstration on the part of the latter, such as, if the imaginary facts 
were real, would under like circumstances have justified a man perfectly 
sane in shooting or killing. If he dare fail to reason on the supposed 
facts embodied in the delusion, as perfectly as a sane man could do on a 
like state of realities, he receives no mercy at the hands of the law. It 
exacts of him the last pound of flesh. It would follow also, under this 
rule, that the partially insane man, afflicted with delusions, would no 
more be excusable than a sane man would be, if, perchance, it was by 
his fault the diflSculty was provoked, whether by word or deed ; or, if, 
in fine, he may have been so negligent as not to have declined combat, 



348 PARSONS V. STATE. [CHAP. V. 

when he could do so safely without increasing his peril of life or limb. 
If this has been the law heretofore, it is time it should be so no longer. 
It is not only opposed to the known facts of modern medical science, 
but it is a hard and unjust rule to be applied to the unfortunate and 
providential victims of disease. It seems to b€ little less than inhu- 
mane, and its strict enforcement would probablj' transfer a large per- 
centage of the inmates of our Insane Hospital from that institution to 
hard labor in the mines or the penitentiary. Its fallacy consists in the 
assumption that no other phase of delusion proceeding from a diseased 
brain can so destroy the volition of an insane person as to render him 
powerless to do what he knows to be right, or to avoid doing what 
he may know to be wrong. This inquiry, as we have said, and here 
repeat, is a question of fact for the determination of the jury in each 
particular case. It is not a matter of law to be decided by the courts. 
We think it sufficient if the insane delusion — • by which we mean the 
delusion proceeding from a diseased mind — sincerely exists at the time 
of committing the alleged crime, and the defendant believing it to be 
real, is so influenced by it as either to render him incapable of perceiv- 
ing the true nature and quality of the act done, by reason of the depra- 
vation of the reasoning faculty, or so subverts his will as to destro}' his 
free agency by rendering him powerless to resist by reason of the duress 
of the disease. In such a case, in other words, there must exist either 
one of two conditions : (1) such mental defect as to render the defend- 
ant unable to distinguish between right and wrong in relation to the 
particular act ; (2) the overmastering of defendant's will in consequence 
of the insane delusion under the influence of which he acts, produced 
by disease of the mind or brain. Rex v. Hadfleld, 37 How. St. Tr. 
1282 ; s. c, 2 Lawson's Cr. Def 201 ; Roberts v. State, 3 Ga. 310 ; Com. 
V. Rogers, 7 Met. 500; State v. Windsor, 5 Harr. 512; Buswell on 
Insan. §§ 434, 440 ; Amer. Law Review, vol. iv. (1869-70) pp. 236-252. 
In conclusion of this branch of the subject, that we maj^ not be mis- 
understood, we think it follows very clearly from what we have said 
that the inquiries to be submitted to the jury, then, in every criminal 
trial where the defence of insanity is interposed, are these : — 

1. Was the defendant at the time of the commission of the alleged 
crime, as matter of fact, afflicted with a disease of the mind, so as to be 
either idiotic, or otherwise insane ? 

2. If such be the case, did he know right from wrong as applied to 
the particular act in question? If he did not have such knowledge, he 
is not legally responsible. 

3. If he did have such knowledge, he may nevertheless not be legally 
responsible if the two following conditions concur : 

(1) If, by r