§ 66. Some Presumptions - (Pistol loaded). - To prove that a pistol was loaded with a ball, which inflicted the wound instead of the wadding, it was deemed competent and sufficient to show, that, when fired, it was pointed to the head of the wounded man, and it made a loud report for a weapon of its size, though no ball was found. Where the accusation is of an assault with a loaded pistol, the presumption appears to be, in the absence of proof to the contrary, that the weapon was loaded.2 Husband's Participation. — If a wife commits an assault and battery in the presence of her husband, and he does not interpose to restrain her, the jury may infer that her act was done with his consent, and convict both.3 § 67. Proof of Intent. — The practitioner should inquire, whether, in his particular case, a specific evil intent - as, to commit rape, to take life, or the like – is in law an essential element in the offence, or whether general wickedness of mind will suffice. If the former, there must be evidence, not merely of the assault, but from which also the jury may infer the specific purpose. Yet this evidence may be circumstantial. For example, — Declaration of Purpose. - Prior declarations of purpose are admissible to this issue. Also — Hate. — Observations evincing bitter hatred to the assaulted . person, made by the prisoner the next day after the assault, have been admitted. So — Confessions are admissible.3 $ 96. a 1 Rex v. Weston, 1 Leach, 4th ed. 247. 5 Oregon, 491; The State v. Jackson, 17 2 Allen v. People, 82 Ill. 610; Burton Misso. 514; Commonwealth v. Silk, 111 v. The State, 3 Texas Ap. 408. See post, Mass. 431; Monday v. The State, 32 Ga. 672; Reg. v. Cox, 1 Fost. & F. 664; 3 Phillips v. Phillips, 7 B. Monr. 268. Brown v. The State, 55 Ga. 169; Roberts This is a civil case, but there is no reason v. People, 19 Mich. 401; Corneille v. The to suppose the presumption would be dif- State, 16 Ind. 232; People v. Kerrains, 1 ferent on an indictment. And see Crim. Thomp. & C. 333; Anderson v. The State, Law, I. & 735. 1 Texas Ap. 730; Lockwood v. The State, 4 Crim. Law, I. $ 735; The State v. 1 Texas Ap. 749; Coney v. The State, 2 Jefferson, 3 Harring. Del. 571; The State Texas Ap. 62; Doyle v. The State, 5 1. Daley, 41 Vt. 564; Garrity v. People, Texas Ap. 442; Scott v. The State, 48 70 III. 83; The State v. Glovery, 10 Nev. Ala. 420; Field v. The State, 50 Ind. 15; 24; Maxwell v. The State, 3 Heisk. 420. Tatum v. The State, 59 Ga. 638. 5 Vol. I. § 1073-1079, 1101; post, $ 97; 6 Vol. I. § 1110; Read v. The State, Crim. Law, I. & 735, 736; Taliarferro v. 2 Ind. 438. The State, 40 Texas, 522; Bradley v. 1 Meeks v. The State, 51 Ga. 429. The State, 10 Sm. & M. 618; The State 8 Vol. I. § 1217 et seq.; Bob v. The v. Napper, 6 Nev. 113; The State v. Doty, State, 32 Ala. 560. Prior Intercourse Res Gestæ. In one case, it was laid down that what took place between the prisoner and prosecutor in the forenoon, the assault being in the evening, was too remote to be of the res gestæ, so not admissible. In another, to show resentment by the prisoner toward the person assaulted, and a consequent motive, the State was permitted to prove that the latter had said in the hearing of the former, shortly before the transaction, that “no honest man would avail himself of the bankrupt act;” in connection with the further fact, that the defendant's father had been talking of taking the benefit of this act. This case lies close to the border; and Gaston, J., said of it: "The circumstance per se would be exceedingly weak; but, in connection with the other evidence in the case, it was entitled to some regard.”2 $ 68. In General. — The evidence of this offence, as of any other, will vary with the circumstances special to the individual instance, while yet it will be kept within the general rules explained in the first volume. Thus, Defendant's Character. - The defendant may put in issue his character, as there shown ;3 but no proof of character, good or bad, can be introduced in the first instance against him, to create a presumption of guilt." Conspiring — Res Gestæ. Whatever is of the res gestæ is generally admissible, so may be the declarations of co-conspirators against each other. When, therefore, an assault appeared, but it was doubtful which party was the aggressor, acts and declarations of third persons tending to show a conspiracy to mob the defendant were held admissible, whether notice of them was brought home to the defendant or not. And Rule and Special Fact combining. · The cases wherein it becomes necessary to apply general rule and special fact to each other are very numerous.3 1 Rosenbaum v. The State, 33 Ala. 8 Yoes v. The State, 4 Eng. 42; The 854. See The State v. Goodrich, 19 Vt. State v. Bruce, 24 Maine, 71; Tarver v. 116. The State, 43 Ala. 351; Commonwealth 2 The State r. Griffis, 3 Ire. 504. v. Cooley, 6 Gray, 350; People v. Bowen, 3 Vol. I. $ 1112-1119. 49 Cal. 654; Smith v. The State, 2 Ohio • Henderson v. The State, 12 Texas, State, 511; Commonwealth v. Bean, 111 625; McKenzie v. Allen, 3 Strob. 546. Mass. 438; The State v. Weeks, 1 Dev. 5 Vol. I. § 1083-1087. 135; Commonwealth v. Lincoln, 110 Mass. 6 Vol. I. $ 1248. 410; Robinson v. Wilson, 22 Vt. 35; Tompkins r. The State, 17 Ga. 356. Richards v. The State, 3 Texas Ap. 423 See Harris v. The State, 63 Ga. 610. VOL. II. 33 5 3 § 69. Husband and Wife as to Each Other. We have seen that, in these cases, where personal violence has been inflicted by a husband on bis wife or a wife on her husband, the married parties may be witnesses for and against each other. There are intimations that this evidence is to be limited to the instances in which no other competent witnesses were present, but such is not the common doctrine. The necessity which creates an exception to the rule forbidding the matrimonial harmony to be disturbed by the parties testifying in each other's causes “is not,” said Lord Mansfield, “a general necessity, as where no other witness can be had ; but a particular necessity, as where, for instance, the wife would otherwise be exposed without remedy to personal injury.” 3 § 70. Presumption as to Chastisement. Where the alleged assault is by a parent on his child, a teacher on his pupil, or the like, in chastisement, it is probably the better doctrine, that, if the relationship appears, the chastisement will be presumed to be reasonable and for sufficient cause, until the contrary is shown. Said Caruthers, J.: “ To hold a parent bound to prove that he had good cause to whip his child, or be subject to a conviction upon indictment, would be monstrous.” 4 $ 70 a. Court or Jury. - Whether force used to repel a battery was appropriate in kind and degree is a question of fact for the jury; to be decided, of course, under instructions upon the law from the court.5 1 Vol. I. § 1153; 1 Greenl. Ev. § 343; 3 Bentley v. Cooke, 3 Doug. 422, 424. Rex v. Azir, 1 Stra. 633; Soule's Case, 4 Anderson v. The State, 3 Head. 455, 5 Greenl. 407; The State v. Boyd, 2 Hill, 457. S. C. 288; Rex v. Serjeant, Ryan & 5 Commonwealth v. Bush, 112 Mass. Moody, N. P. 352, 354; The State v. 280. See Silvus v. The State, 22 Ohio Neill, 6 Ala. 085; Commonwealth v. Mur. State, 90; Weaver v. The State, 24 Ohio phy, 4 Allen, 491. State, 584. 2 The State v. Davis, 3 Brev. 3. 34 CHAPTER V. ATTEMPT.1 8 71-73. Introduction. 74-76. Solicitations to Crime. $ 71. Two Elements. — An indictable attempt consists of two elements, - a specific intent to do something which constitutes a subsiantive crime, and an act toward but short of its completion.” Both of these elements, therefore, should be charged in every indictment; the only question being how minutely. And the proofs should cover both. $ 72. Obscurity of Subject. — The obscurity of this subject, explained elsewhere, extends as well to the procedure as to the law. The difficulties are in the condition of the authorities, particularly as to the indictment. Viewed in the light of principle, this subject is as plain as most others. Kind of Attempt. — The indictment will in some degree vary with the kind of attempt. Hence $ 73. How the Chapter divided. - We shall consider, I. The Indictment for Soliciting to Crime; II. The Indictment for committing a Lower Crime intending a Higher; III. The Indictment for Other Acts falling short of a Particular Substantive Crime intended; IV. The Evidence. I. The Indictment for Soliciting to Crime.* $ 74. In General. Though commonly a solicitation is by words, their tenor need not be set out in the indictment, but 1 For the law of this subject, see Crim. Law, I. & 723 et seq. 3 Crim. Law, I. $ 727-730. : Crim. Law, I. $ 725. 4 For the law of this sub-title, seo Crim. Law, I. § 675, 767, 768; II. $ 20, 62. or did their substance will suffice. The allegation may be simply that the defendant did “solicit," or that he did “incite," “ solicit and incite," 2 — the person operated upon to commit the — offence; the one word indicating the criminal act with sufficient minuteness. And when to this is added the proper statement of the particular offence meant, the intent of the defendant appears, and the indictment for the attempt is complete. Thus, – Soliciting to Larceny or Embezzlement. — An English form for soliciting a servart to steal and embezzle his master's goods is, that the defendant, at a time and place, “ falsely, wickedly, and unlawfully did solicit and incite one J. W., a servant of one J. N., to take, embezzle, and steal a large quantity, to wit, one hundred pounds' weight of cotton twist, of the goods and chattels of his master, the said J. N.”4 The allegation that the attempt was to procure the commission of two offences does not render the indictment double ; 5 but, as probably in some States there cannot be both an embezzlement and a larceny of the same goods from the same owner, this part of the form is in such States, at least, not to be commended. In like manner, § 75. Soliciting to Perjury from Testifying. Though,” says Starkie,8 “ some of the old indictments for endeavoring to suborn state an offer of money,' yet it has been deemed sufficient to charge an endeavor to suborn generally, without stating the means. So in an indictment for endeavoring to keep away a witness.” 10 The particular perjury meant to be procured need not be stated.?! Again, To abstain 1 Vol. I. § 559-563. son). — In People v. Bush, 4 Hill, N. Y. 2 Vol. I. § 434-436. 133, “the fourth count charged,” says 3 Rex v. Higgins, 2 East, 5, and the the report, "that the defendant, on, &c., other cases cited elsewhere to this sub- at, &c., falsely, wickedly, &c., did solicit title; also People v. Thompson, 37 Mich. and incite one Kinney, unlawfully, felo118; Stuckmyer v. The State, 29 Ind. 20. niously, &c., in the night time to set fire 4 Archb. Crim. Pl. & Ev. 13th Lond. to a certain barn of said Sheldon, situate, ed 805; Ib. 19th ed. 1025. &c., with intent to injure said Sheldon, 5 Vo'. I. § 437; post, $ 93. against the peace of the people,” &c. It 6 Crim. Law, II. § 328, 329. was held sufficient. 7 This is in substance the form held 81 Stark. Crim. Pl. 2d ed. 146. good in Rex r. Higgins, 2 East, 5. But 9 Rex v. Margerum, Trem. P. C. 168; the objection intimated in my text Rex v. Buckingham, Trem. P. C. 171, namely, that the solicitation was to an 174. act legally impossible - was not raised; 10 Fitzg. 263. See also Rex v. Plympthe indictment being treated as for a so- ton, 2 Ld. Raym. 1377; Watson v. The licitation simply to steal, and the princi. State, 5 Texas Ap. 11. pal question being whether this was 11 The State u. Holding, 1 McCord, 31. indictable. Soliciting to burn — (Ar |