1. Under an indictment founded on § 148 of the Act of June 8, 1872 (17 U. S. Stat. at Large, 302), as amended by § 2 of the Act of March 3, 1873 (Ib. 599), which provides that no article or thing designed or intended for the prevention of conception or procuring of abortion" shall be carried in the mail, and declares guilty of a misdemeanor any person who knowingly deposits, for mailing or delivery, any such article or thing, the defendant cannot show, in defence, that the article deposited in the mail would not, in fact, have any tendency to prevent conception or procure abortion, and that its harmless character was known to him when he deposited it, it being sufficient that the article, when deposited, was put up in a form, and described in a manner, calculated to insure its use to prevent conception or procure abortion, by any one desiring to accomplish that result, and into whose hands it might fall. United States v. Bott, 239, and see note.
2. Under an indictment founded on the same section, which declares it to be a misdemeanor to knowingly deposit in the mail, for mailing or delivery, any advertisement or notice giving information where or of whom any such article or thing may be obtained, if it be shown such a notice was deposited, it is immaterial whether, in fact, the article or thing was at the place designated. Ib. See INDICTMENT, 9; RAPE, 3.
1. If a principal totally and substantially departs from the instructions of an accessory, and commits a different offence or an additional offence, he stands single in such different or additional offence, and the other is not held responsible for it as accessory. Watts v. State, 676.
2. When an accessory to the crime of assault and battery with intent to murder is tried before the principal, and a verdict of guilty is rendered against him, but before judgment the principal is tried and acquitted, the accessory, on the production of the record showing the acquittal of the alleged principal, is entitled to be discharged. McCarty v. State, 715.
3. Section 51 of the Criminal Code of Indiana authorizes the trial and conviction of an accessory before or after the conviction of the principal offender; but it does not authorize the conviction of the accessory after the principal has been tried and acquitted. Ib.
See ACCOMPLICE; INDICTMENT, 11; RAPE, 3.
1. At the trial of an indictment for breaking into a shop at night, evidence that a party of persons, among whom the defendant and A. B. were recognized, were seen at a late hour of the night near the shop, is corroborative of an accomplice who has testified that he was then and there with the defendant and A. B. Commonwealth v. Elliot, 261.
2. A detective who enters into communication with criminals without any felonious intent, but for the purpose of discovering and making known their secret
designs and crimes, and acts throughout with this original purpose, is not to be
regarded as an accomplice; the question whether he was so acting is one of
fact for the jury. State v. McKean, 635.
See ACCESSORY; EVIDENCE, 26; EXCEPTIONS, 1.
See MURDER, 7, 8, 9, 10, 11; Verdict.
ADMISSIONS AND CONFESSIONS.
1. A plea of guilty to a complaint for keeping a certain tenement open on the
Lord's day, within the time covered by an indictment for keeping the same
tenement for the illegal sale and illegal keeping of intoxicating liquors, is, on
the trial of such indictment, competent evidence to show that the defendant
kept the tenement within the time charged. Commonwealth v. Ayers, 280.
2. The sheriff may testify to statements made to him by the accused after his
arrest, if such statements are made voluntarily, without any threats or promises
of reward. People v. Rodundo, 411.
3. Silence under a charge or suspicion of crime made to or expressed in the pres-
ence of a person, is legal testimony for the consideration of the jury as evidence
of guilt. State v. Reed, 468.
4. Falsehood, evasion, or silence under and in relation to crime, of which one
knows himself to be suspected, is evidence tending to show guilt. Ib.
5. Where statements of a prisoner are given in evidence against him, the ex-
culpatory parts thereof, as well as those which import guilt, are to be received
as evidence, and it is the province of the jury, in the light of all the evidence
in the case, to decide upon the truth or falsehood of such exculpatory parts;
and it is not error in the court so to instruct the jury, and to refuse to instruct
them that they have no right to reject or disregard such exculpatory parts,
unless there is some other evidence in the case showing them to be false, or
unless they are so unreasonable or absurd as to be, in the opinion of the jury,
unworthy of credence. Blackburn v. State, 534.
6. In order that a confession may be received in a criminal case, it must be volun-
tary; it will be excluded, if it was induced by a promise of benefit or favor,
threats of intimidation or disfavor, by a person having authority in the matter.
State v. Jones, 602.
7. When a confession has once been obtained by means of hope or fear, subse-
quent confessions are presumed to come from the same motive, and are inad-
missible, unless it is shown that the original motives have ceased to operate.
Ib.
8. Confessions are not inadmissible because produced by artifice; e. g. by per-
suading the prisoner that his accomplices were in custody, or that they had
divulged the facts relative to the crime. Ib.
9. A conviction of murder is not warranted when there is no other proof of the
corpus delicti but the uncorroborated, extra-judicial confession of the accused.
State v. German, 605.
10. Confessions which are not voluntarily made, but drawn out through the in-
ducements of hope or fear, are absolutely inadmissible against the prisoner.
Hence, whether confessions proposed to be introduced are of this character is a
question of law for the court, to be determined on preliminary testimony, which
it is the right of defendant to introduce and the court to receive. State v.
Fidment, 632.
11. Any circumstances tending to show the guilt of the accused may be proved,
although it was brought to light by a declaration inadmissible per se, as hav-
ing been obtained by improper influence. Therefore, evidence as to the condi-
tion of the prisoner's hand at the time of holding the inquest is admissible,
although the prisoner was then compelled to exhibit her hand by the coroner,
after objection on her part. State v. Garrett, 751.
12. Although extra-judicial confessions alone are not sufficient to prove the body
of the crime in cases of homicide, they may be taken and used for that purpose
in connection with other evidence. Blackburn v. State, 534.
ADULTERATION OF FOOD.
See INTENT, 2, 3.
ADULTERER.
See LARCENY, 2, 3.
ADULTERY.
1. Under the California St. of 1872, § 2, proof of notoriety is as material as proof
of the fact of adultery, in making out the offence of living in a state of open
and notorious cohabitation and adultery. People v. Gates, 425.
2. Testimony of the particeps criminis that she was "married two years ago by
C. L. at his house," it not appearing that C. L. professed to be "a justice of
the peace or an ordained or licensed minister of the gospel," or that the mar-
riage was " consummated with a full belief on the part of either of the persons
married, that they were lawfully married," is not sufficient evidence of a mar-
riage in an indictment for adultery. State v. Bowe, 459.
3. Persons in order to be guilty of living together in open and notorious adultery,
as meant by the statute of Missouri, (Wagn. Stat. p. 500, § 8), must reside
together publicly, in the face of society, as if the conjugal relation subsisted be-
tween them, and their illicit intercourse must be habitual, and not occasional.
State v. Crowner, 616.
AFFIDAVIT.
See CONTEMPT, 5, 7.
Riding unarmed through a court-house, after the court has adjourned and the
crowd gone home, may or may not be a criminal offence, according to circum-
stances. It is for the jury to say, whether or not it was done in such manner
and in such presence and at such time as would make the offence criminal.
State v. Lanier, 753.
1. When a defence is an alibi, the proof must cover the time when the offence
was committed, so as to preclude the possibility of the prisoner's presence at
the place of the crime. Briceland v. Commonwealth, 523.
2. The prisoner's failure to prove an alibi when set up by him does not relieve the
commonwealth from proving that he committed the crime. Ib.
3. In a criminal action, the charge to the jury, that under evidence of an alibi
"you should carefully examine, in order to ascertain whether, even if an ab-
sence be shown, that absence at another place was so complete and of such a
character in regard to time and location, as to render the defendant's presence
impossible at the time and place of the commission of the alleged crime," was
held to be erroneous. If the jury believed the defendant to have been at
another place at a given time, and if his being there then created a reasonable
doubt of his presence at the place of the crime, at the time of its commission,
he should have been acquitted. Adams v. State, 686.
1. On an indictment for attempt to commit arson, the evidence showed that one
W., under the direction of the prisoner, after so arranging a blanket, saturated
with oil, that, if the flame were communicated to it, the building would have
caught fire, lighted a match, held it till it was burning well, and then put it
down to within an inch or two of the blanket, when the match went out, the
flame not having touched the blanket. Held, that the prisoner was properly
convicted, under 32 & 33 Vict. ch. 22, sec. 12, of an attempt to commit arson.
Queen v. Goodman, 83.
2. An indictment upon the Mass. Gen. Sts. c. 161, § 1, which provides for the
punishment of any one who sets fire to a building by the burning whereof a
dwelling-house is burned, alleging that the defendant set fire to a barn, by the
burning of which a dwelling-house was "burned and consumed," is supported
by proof that some portion of the house was actually on fire, so that the sub-
stance of the wood of such portion was actually burned, although said portion
was not consumed, and the substance and fibre of said wood was not actually
destroyed. Commonwealth v. Tucker, 266.
3. An indictment, which alleges that the defendant burned a building called a
barn, but does not state whether a dwelling-house was or was not burned
thereby, is good under § 2, c. 262, Gen. Sts. of New Hampshire, which pro-
hibits the burning of any building other than a dwelling-house, or an out-build-
ing adjoining thereto, or a building whereby a dwelling-house shall be burned.
State v. Emerson, 362.
4. Upon a trial under an indictment which charges the burning of a barn, with-
out alleging that a dwelling-house was burned thereby, proof that a dwelling-
house was burned thereby is immaterial; it can neither defeat the prosecution,
nor subject the defendant, if convicted, to additional punishment; and a con-
viction or an acquittal will be a bar to a subsequent prosecution for the higher
offence. Ib.
5. If an attempt is made to burn a house by lighting a fire, and the wood of the
house is charred in a single place so as to destroy its fibre, the crime of arson
is complete, even if the fire is then extinguished. People v. Haggerty, 431.
1. If A. menacingly points at B. a gun which B. has reasonable cause to believe
loaded, and B. is put in fear of immediate bodily injury therefrom, and the cir-
cumstances would ordinarily induce such fear in a reasonable man, A. is guilty
of an assault, although he knows that the gun is not loaded. Commonwealth v.
White, 269. See note, 271.
2. The sixth count of an indictment for an assault and battery charged as fol-
lows: "That Allen Harne on the twenty-fourth day of August, in the year of
our Lord, eighteen hundred and seventy-two, with force and arms, at the county
of Washington aforesaid, in and upon one, in the peace of God, and the
said state then and there being, did make an assault, and him, the said John
Delosier, did then and there beat, bruise, wound, &c., to the great damage of
the said John Delosier, and against the peace, government, and dignity of the
state."
On demurrer to this count, it was held, that the count was suffi-
ciently certain to inform the accused of the offence with which he was charged,
and of the party upon whom it was committed; and the demurrer was, there-
fore, overruled. Harne v. State, 394.
3. In a prosecution for assault and battery, the court instructed the jury that if,
under certain circumstances mentioned in the charge, "the defendant struck or
beat the prosecuting witness while he was gathering corn in the field; or, while
he was driving his team in the field, in the act of gathering corn, the defend-
ant struck and beat the horses of the prosecuting witness in a rude and angry
manner with a stick, the defendant is guilty of an assault and battery." Held,
that as there was evidence tending to prove that the defendant did strike the
horses when being driven, the instruction was calculated to mislead the jury
to the conclusion that such striking the horses was an assault and battery upon
the driver, which it was not in any legal or logical sense, the driver himself not
having been touched directly or indirectly, and hence such instruction was er-
roneous. Kirland v. State, 706.
See ACCESSORY, 2; Defence, 1, 4; HUSBAND AND WIFE, 4; JURISDICTION, 1;
MANSLAUGHTER; Murder; VARIANCE, 1; WITNESS, 6, 19.
1. The power to disbar an attorney is possessed by all courts which have author-
ity to admit attorneys to practise. But the power can only be exercised where
there has been such conduct on the part of the party complained of as shows
him to be unfit to be a member of the profession; und before judgment disbar-
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