"OBSCENE AND VULGAR LANGUAGE." Construed, p. 794. OBSCENE LANGUAGE. See OBSCENITY. OBSCENE LETTERS. See POST-OFFICE LAWS. OBSCENITY. "Obscene and vulgar language," construed, p. 794. ORSTRUCTING OFFICER. See RESISTING OFFICE. OBSTRUCTING RAILROAD TRAIN OR TRACK. An indictment under the Massachusetts statute for obstructing a railroad train and endangering the safety of the passengers, can not be maintained against a passenger, who, from whatever motive, pulled a signal rope attached to a bell upon the engine and thereby caused the train to be stopped and the safety of the passengers to be endangered. Com. v. Killian, p. 680. To warrant a conviction, under a statute, for placing an obstruction on a railroad track, the evidence must show that the obstruction was such as might have endangered human life, which is the gist of the offense. This is not proved by evidence that the defendant placed across a railroad track a piece of iron bar which the witness was unable to remove with his foot, but did remove with his hands. Bullion v. State, p. 683. The State proved the obstruction to have been a piece of railroad iron, six or eight feet in length, put across a track, and that it was removed before any train passed. To show that human life might have been endangered thereby, the State could and should have proved whether it was on a level or on an embankment, the main track or switch, and usual speed of trains thereat. Id. OBSTRUCTING ROADS AND STREETS. Where the overseer of a public road in opening the road does not follow the line of the survey of the commissioners who laid it off, but goes through the farm and lot of an adjacent land-owner, and throws down the fences, the putting up the fences by such land-owner is not an offense. Ward v. State, p. 672. It is the duty of commissioners, in opening a public road, to go upon the ground after giving the notice required by law, and determine whether the change is a public necessity, and if so, lay off the road in such manner as to work the least injury to the land-owners. Id. To constitute this offense, the road must be a public one. D. was indicted under the statute. The evidence showed that, according to the report OBSTRUCTING ROADS AND STREETS — Continued. of the jury of review who delineated the road in question its route followed the boundary line between two adjoining surveys, but that, as actually laid out on the ground, the road ran some two hundred yards from said boundary line; that the reported route was never laid out or marked upon the ground and had never been used or worked as a public road; whereas the actual road had always been the route used by the public, and had been worked by the road overseers of the county. The obstruction consisted of the enclosure by appellant of the reported route, never laid out, marked, used or worked as a public road. Held, that, until authoritatively discontinued, the true road was that actually used by the public and recognized by the county authorities, and not the route delineated in the report of the jury of review, but never opened, used or worked. Hence, the proof did not sustain the conviction. Day v. State, p. 674. Even in cases where the obstruction is placed upon the road proper, the evidence must show that the obstruction was willful. A ortiori, when the obstruction is consequential - arises from an act which the accused had the legal right to do - the evidence must show that the act was willfully done, and with a view to such indirect or consequential effects. Schubert v. State, p. 679. When used in a penal statute, the term "willful" means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful. Id. Obstruction must affect public interest, p. 766. What is a public road, p. 766. Mere private road not, p. 766. Road must be legally established, p. 766. Obstructing by "fence, bar, or other impediment," p. 770. Obstructing streets; ordinance of city, p. 770. Footwalks, trees and hitching posts in highways, p. 772. Illegal act of officer in laying out, a defence, p. 773. And that street not accepted, p. 773. "Off his premises" construed, p. 774. OBSTRUCTING THE MAIL. See POST-OFFICE LAWS. "OCCUPATION.” Construed, p. 765. "OFF HIS PREMISES." Construed, p. 774. "OFFICER." Construed, p. 591, 950. "OFFICER, DIRECTOR OR MANAGER OF BANK." Construed, p. 950. "OFFICER ENGAGED IN EXECUTION OF PROCESS OR ARREST OF CRIMINALS." Construed, p. 591. "OFFICER OF BANKING INSTITUTION." Construed, p. 197. "OFFICER OF THE UNITED STATES." Construed, p. 314. OFFICERS. See RESISTING OFFICER; EXTORTION; EMBEZZLEMENT; CONSPIRACY. "OFFICIAL MISCONDUCT." Construed, p. 318. "ON ACCOUNT OF." Construed, p. 941. "OPEN AND GROSS LEWDNESS AND LASCIVIOUS BEHAVIOR." Construed, p. 793. "OPEN AND NOTORIOUS ADULTERY." See ADULTERY. "OPEN STORE." Construed, p. 780. OPINION. See PERJURY. The opinion of a witness that a woman had had a miscarriage is inadmissible, p. 7. The opinion of a witness that a woman "looks like a white woman" is not sufficient upon which to found a conviction, p. 61. OUTHOUSE. Construed, pp. 820,885. "OUTHOUSE WHERE PEOPLE RESORT." Construed, p. 759. PARENT AND CHILD. See, also, CONCEALING BIRTH. Neglect on the part of a parent to provide an infant child with necessary food and clothing is not a misdemeanor at common law, unless some actual injury is done to the child; and in an indictment for that offense an averment that the child was actually injured is a necessary and material allegation and must be proved. R. v. Philpot, p. 71. Whether an actual injury has been occasioned is a question of fact for the jury; but where upon a case reserved, it appeared that a mother had left hr children several days without food or clothing, so that, but for the attention of a neighbor, they might probably have died; but that, in consequence of that attention, they did not suffer any serious injury, though the neighbor thought that they did suffer in some degree; and the question was put to the court whether the injury was sufficient in degree to constitute the offense. Held, insufficient. Id. A parent is not indictable for failing to bury his deceased child, where he has no means to do so. And the fact that he can obtain the means by going in debt does not alter the rule. R. v. Vann, pp. 74, 107. Liability of parent for neglect to supply food for infant, p. 105. Child must be unable to help himself, p. 107. Health of child must be actually injured, p. 107. Neglect of party's agent, p. 108. "PART OF A WOOD." Construed, p. 821. "PASSING." Construed, p. 259. PENSION LAWS. The offense of unlawfully retaining pension money is complete at the time of reception and refusal to pay over. The subsequent retention does not create a new offense. U. S. v. Bennett, p. 178. Where a pension agent, in pursuance of a contract entered into between himself and a soldier's widow, retained out of a pension procured by him for her his legal fee, and a certain sum in addition for removing the imputation of desertion resting upon her late husband upon the rolls of the War Department, and his costs and expenses, held, that such retention was lawful, and not an offense under the law relating to the retention of pension by pension agents. U. S. v. Snow, p. 184. It is not an offense under Revised Ststutes, for an agent having received pensioner's money, to retain out of it with his consent money sufficient to pay certain debts of the pensioner. U. S. v. Hewitt, pp. 187, 262. Withholding money collected as "pay and bounty" and " arrears of bounty" are not offenses under section 13 of the act of July 4, 1864. U. S. v. Benecke, p. 192. Section 31 of the act of March 3, 1873 does not apply to a case where the money was "withheld" before its passage. Id. Gist of crime of withholding pension money, p. 260. Statutes not applicable when, p. 262. Money must be withheld from owner, p. 262. PERJURY. See, also, SUBORNATION OF PERJURY. To sustain perjury a valid oath must be proved. O'Reilly v. People, p. 339. Where the prisoner handed to an officer authorized to take and certify affidavits, an affidavit previously signed by him and reciting that he had 2 DEFENCES. 63 been duly sworn, and the officer put his signature to the jurat without any words or formalities: held, that an indictment for perjury could not be sustained the necessary "oath" being wanting. Id. An information for perjury alleged to have been committed in swearing to a bill in equity, must show that it was required by law to be verified by oath. People v. Gaige, p. 343. The information must likewise show that the matter sworn to was material to the suit. Id. Perjury can not be predicated of an affidavit sworn before a notary public professing to act in the city of New York but who was a non-resident of the State at the time of his appointment. Lambert v. People, p. 347. In order to sustain an indictment for perjury it must appear that the officer had authority to administer the oath charged. U. S. v. Nickerson, pp. 355, 357. Under the Act of 1813 in relation to fishing bounty, no oath is required to the agreement referred to in the seventh section. Id. The Act of 1813, prescribes the oaths to be taken to obtain the fishing bounty and it is not competent for an officer to require a new oath, so as to make the false taking of such oaths criminal. Id. To make the taking of a false oath perjury it must be required by law or by usage sanctioned by the law or by the government. U. S. v. Babcock, p. 362. A clerk of the court can not make a usage of administering oaths so as to make a party guilty of perjury who should falsely make them. Id. A voluntary or extra-judicial oath is not perjury even if false. Id. An indictment which charges perjury to have been committed on the examination of certain persons charged with the crimes or offenses against the United States, before a certain commissioner of the United States, but fails to state how or by whom, or for what purpose, or under what statute he was appointed, is bad. U. S. v. Wilcox, p. 365. An indictment for perjury under act of March 3, 1825, must show that the proceeding in which false testimony was given was one in which an oath was required. It is not enough to allege that the person against whom the proceedings were had were charged with a crime against the United States, but the particular charge should be stated, and it must appear what charge was under investigation in the proceeding in which the oath was taken, in order that the court may see that the testimony alleged to have been given was material. Id. A person can not be convicted of perjury for taking a false oath before one not empowered by law to administer oaths. State v. Phippen, p. 367. A township assessor, in Iowa, is not authorized to enter upon his duties before the third Monday in January. Held, that a person who before that day falsely swore to an assessment of his property, was not guilty of perjury. Id. To constitute perjury, it is essential that the oath or affirmation was administered in the manner prescribed by law, and by some person duly |