Popular Law Library Vol10 Criminal Law, Criminal Procedure, Wills, Administration | by Albert H. Putney

Blackstone in his well known commentaries has divided the subject of law into two divisions: the law of Rights, and of Wrongs...

Title	Popular Law Library Vol10 Criminal Law, Criminal Procedure, Wills, Administration
Author	Albert H. Putney
Publisher	Cree Publishing Company
Year	1908
Copyright	1908, Cree Publishing Company
Amazon	Popular Law-Dictionary

Chapter I. General Principles. Section 1. Introductory - Law Divided: Blackstone in his well known commentaries has divided the subject of law into two divisions: the law of Rights, and of Wrongs. The first of these divisions is subdivided into the law relating to pers...

Section 2. Sources Of The Criminal Law: The criminal law as well as the civil comes from two sources: the common law, sometimes called the unwritten law, and the statutory or written law. By statutory provisions in many of the states the c...

Section 3. Interpretation Of Written Law: The importance of looking to the common law for light in the interpretation of statutes and constitutions cannot be better stated than as stated by Chief Justice Shaw in the case of Com. vs. Chapman, ...

Section 4. Criminal Offense Defined: A criminal offense is the violation of a public law which prescribes a punishment for the violation thereof. All criminal laws are public laws. Blackstone's definition: A crime or misdemeanor is an a...

Section 5. Quasi-Criminal Offences: There is a class of violations of a quasi criminal nature. This class embraces all offences not crimes or misdemeanors - arising usually in the violation of city or village ordinances. All qui tarn ac...

Section 6. Distinction Between Tort And Crime: A tort is not a crime but merely a wrong affecting the civil rights of an individual, while a crime is a wrong affecting the public rights and is an injury to the whole community.11 Blackstone's dist...

Section 7. Classification Of Criminal Offenses: Crimes are usually divided into three classes, according to their grades, namely: - treason, felony, and misdemeanor. This is Blackstone's classification and from his time to the present has been foll...

Section 8. Treason Defined: This crime is defined by the constitution of the United States: Treason against the United States shall consist only of levying war against them, or in adhering to their enemies, giving them aid and c...

Section 9. Treason By Levying War: The levying of war against a government has always been regarded as an act of treason.15 The mere intention to commit this crime by the levying of war is not of itself sufficient; an overt act is ess...

Section 10. Punishment For Treason: The punishment for this crime by the common law is a forfeiture of all property and honors and attainder of blood; also the death penalty.21 Blackstone: The offender shall be drawn to the gallows, an...

Section 11. Felony Defined: The term felony at common law comprises every species of crime which works a total forfeiture of lands or goods, or both, and to which may be added the death penalty.23 In most if not all of the stat...

Section 12. Misdemeanor Defined: Every criminal offense which does not amount to a felony is a misdemeanor, the punishment usually being a fine or imprisonment in the county jail, or both.27 ...

Section 13. Elements Of A Urime: In order to constitute a criminal offense there must be a union or joint operation of an act and intention, or criminal negligence. From this it will be observed that a criminal offense is generally c...

Section 14. Good Faith And Belief: So where a statute relating to marriage provides that if any person shall join in marriage any minor without the written consent of the parent, guardian or person having charge of such minor, he sha...

Section 15. Act Done In Sport No Defense: Even where one does an act merely in sport, he will be held criminally liable in case the act was done in a careless or reckless manner; as where a boy in sport throws a stone at another expecting him...

Section 16. Committing A Different Offense: There is another aspect of criminal intent which properly comes under observation in this connection; that is, where a person intending to commit a certain criminal offense, by mistake commits another...

Section 17. Principal And Accessory: A person connected with the commission of a crime is either a principal or an accessory. One committing a crime with his own hand is principal. There are two classes of accessory; - before the fact, a...

Section 18. When Not An Accessory: The mere presence of a person when a crime is committed will not render him an accessory, although he may consent to the perpetration, unless he in some manner aided, abetted, assisted or encouraged, ...

Section 19. Common Law Modified: But the common law has been modified by statutes in some of the states. In Illinois for instance, an accessory is one who stands by, and aids, abets or assists or who not being present, aiding, abett...

Section 20. Indictment, Trial, Verdict: The principal and accessory can be jointly indicted in the same count of the indictment by proper allegations showing the commission of the crime by one and alleging the facts showing the other to be ...

Chapter II. Offenses Against The Person. Section 21. Simple Assault Defined: An assault is an attempt or offer with force or violence to do an injury or hurt to the person of another, whether wantonly or with a malicious intention, under such circumstances as denote an intenti...

Section 22. What Is Not An Assault: Merely picking up a stone but making no effort to throw it at another is not an assault.5 Nor is it an offense merely to hold a pistol in the hand without attempting to shoot or strike with it.6 1 Un...

Section 23. Assault And Battery Defined: An assault and battery is the unlawful beating of another.9 The least touching of another in anger or wilfully constitutes the offense.10 Any force, however slight, used against the person of another...

Section 24. What Is Not Assault And Battery: A parent, guardian, teacher or other person having the lawful custody of a child may use moderate or reasonable force as a corporal punishment in the restraint of such child; and only the use of unnec...

Section 25. Assault With Deadly Weapon: There is a class of aggravated assaults defined by statutes making it a crime for one to make an assault upon the person of another with a deadly weapon, instrument or thing, with the intent to inflic...

Section 26. Assault To Commit A Felony: By common law an assualt to commit a felony is only a misdemeanor.23 But by statutes the common law has been modified in perhaps nearly all of the states, making such an assault a felony. In this cl...

Section 27. Murder Defined: By the common law, murder is when a person of sound mind and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or i...

Section 28. Malice Aforethought An Element: According to both the common law and statutory definitions malice aforethought is an essential element of murder, particularly in the first degree; and death must follow within a year and a day as a r...

Section 29. The Means Or Mode Of Killing: The unlawful killing may be perpetrated by-poisoning, striking, starving, drowning, stabbing, shooting or by any other of the various forms or means by which human nature may be overcome, and death th...

Section 30. Killing An Innocent Person: One has no right to kill an innocent person to save himself, whatever may be his danger. Though a man be violently assaulted and has no other means of escaping death but by killing an innocent person,...

Section 31. Wound Neglected, Death Resulting: The unlawful infliction of a wound upon the person of another which is not dangerous in itself, and death results from improper treatment or carelessness, then the person inflicting the wound is not c...

Section 32. Manslaughter Defined: Manslaughter is included in the crime of murder and differs from murder in that the killing is done without malice aforethought and is either voluntary or involuntary. The common law definition is as...

Section 33. Provocation Causing Passion: The passion which the law requires in order to reduce a homicide from murder to manslaughter must be caused by an adequate provocation, for mere passion is not sufficient, nor will provocation alone b...

Section 34. Death Resulting From Negligence: Manslaughter from negligence may occur either from the doing of a lawful act in an unlawful manner or without proper care or caution, or from negligent omission to do some act the law requires one to ...

Section 35. Killing In Making An Arrest: It is better to allow one guilty of a misdemeanor to escape rather than take his life. So an officer having a prisoner in custody who had been convicted of assault and battery and ordered committed in...

Section 36. Resisting An Unlawful Arrest: It is well established that if a public officer be resisted and killed by one whom he is attempting to arrest illegally and without color of authority, the killing will be manslaugbter, unless the evi...

Section 37. Selfdefense And Defense Of Others: By the law of nature as well as by the law of society or government, one has the right to resist force with force in the defense of himself or of others when assailed by another in a dangerous or dead...

Section 38. Duty To Retreat, When: The ancient doctrine requiring one to retreat and in good faith decline the combat, if he can, before he will be permitted to invoke the law of self-defense in justification for killing his assailant ...

Section 39. Death From Accident; Suicide: If a person meets his death merely by accident, of course there can be no criminal responsibility against any one. For instance, where a man is doing a lawful act, and without intention of hurt, unfor...

Section 40. Evidence - Burden Of Proof: The burden of proof is upon the prosecution to make out a prima facie case against the accused, no matter what his defense may be. But as a general rule when the prosecution has proved the killing and...

Section 41. Evidence Of Dying Declarations: As a general rule declarations of the deceased relating to the cause and circumstances of his death and by whom he was assaulted are incompetent, being hearsay. But to this rule there is a very import...

Section 42. Competency Of Dying Declarations: The competency of dying declarations is a question for the court to determine and not for the jury; and the test of the competency should be made out of the presence of the jury.96 Dying declarations...

Section 43. Oral And Written Declarations: Oral declarations of the deceased, as well as those reduced to writing may be given in evidence if otherwise competent. And such declarations may-consist of signs as well as words; and it makes no dif...

Section 44. Impeachment Of Dying Declarations: The evidence of dying declarations may be discredited or impeached in the same manner and by the same rules or tests that the testimony of the deceased could have been, had he appeared on the stand as...

Abduction. Section 45. Definition And Elements: By the common law abduction is the taking away of a man's wife, or child or children, or ward of a guardian, by fraud or persuasion, or open violence.109 Another definition is the unlawful taking or ...

Section 46. Intent Or Purpose Essential: Under the statute of Illinois the purpose or intent is the gist of the offense, and is complete the moment the female shall be removed beyond the control of her parents or of any other person having t...

Section 47. Prostitution; Chaste Life: Prostitution within the meaning of the statute defining abduction, signifies the practice of prostituting or offering the body of the female to an indiscriminate intercourse with men for hire, and not...

Section 48. Evidence - Intention Of Accused: For the purpose of showing the intention of the accused, the prosecution may prove previous and subsequent acts of illicit relations between him and the female.123 And the intention of the accused ma...

Section 49. Evidence Of Female's Unchastity: The accused in his defense may prove the unchastity of the female prior to the time of the alleged abduction; and this may be shown by evidence of single acts of illicit intercourse;127 and as tending...

Kidnapping. Section 50. Definition And Elements: As defined by the common law, kidnapping is the forcible abduction or stealing away of a man, woman or child from their own country and sending them to another.131 Statutory enactments relating to ki...

Section 51. False Imprisonment Defined: The crime of kidnapping and false imprisonment are very nearly alike in their elements. False imprisonment is the unlawful violation of the personal liberty of another by unlawfully confining or detai...

Mayhem. Section 52. Definition And Elements: Mayhem is the violently depriving another of the use of such of his members as may render him the less able in fighting either to defend himself or to annoy his adversary.140 But under many statutory ...

Section 53. Specific Intent Essential: Under some statutes a specific intent is an essential element of this offense,143 but not so under other statutes, the accused being held responsible for the probable consequences of his act.144 But w...

Rape. Section 54. Definition And Elements: By common law, rape is the carnal knowledge of a woman forcibly and against her will.150 Penetration of the female is an essential element but the least degree is sufficient. Emission is not necessar...

Section 55. Resistance Repelling Force: The theory which requires force in the commission of the crime of rape also requires resistance on the part of the female to the extent of her ability,154 unless some excuse for want of resistance is ...

Section 56. Manner Of Committing Rape: Carnal knowledge of a woman while she is asleep is against her will;162 or if the act be committed while she is unconscious by means of drugs or liquors,163 or if the female yielded through fear or fr...

Section 57. Age Of The Male And Female: By English statute it is rape to have carnal knowledge of a female under the age of ten years, either with or without consent, she being conclusively presumed incapable of giving consent.170 Carnal k...

Section 58. Ability And Disability To Commit Rape: A husband cannot commit rape by having carnal knowledge of his wife forcibly and against her will,175 but if he in any manner aids and abets another man to ravish her he will be guilty of that offense...

Section 59. What Is Not A Defense: The unchastity of the female is no defense to a charge of rape; for an unchaste as well as a chaste woman, may be ravished.180 Nor is it a defense to an indictment for rape that the accused, previous...

Section 60. Complaint Of The Female: It is quite natural for a female who has been assaulted or ravished to make complaint of the fact to her parents or others without delay. Such complaint is competent evidence only of the mere fact th...

Section 61. Other Distinct Acts Incompetent: Evidence of other independent and distinct offenses of rape committed upon some other female than the female named in the indictment is incompetent.190 On a charge of rape upon a female under the age...

Section 62. Impeachment Of The Female: The character or reputation of the female alleged to have been ravished, for chastity, may be impeached, but this must be done by general, reputation in that respect, and not by particular acts.192 1...

Section 63. Physician's Examination Of Female: The details of the result of a physical examination of the female by a competent physician showing her condition is generally competent.196 A medical expert witness may state his opinion based upon h...

Chapter III. Offenses Against Property. Larceny. Section 64. Definition And Elements: Larceny is the felonious taking and carrying away of the personal goods of another.1 Another common law definition is, the wrongful and fraudulent taking and carrying away of the personal goods of an...

Section 65. Grand And Petit Larceny: By common law the stealing of goods above the value of twelve-pence is called grand larceny, and when of that value or under, it is petit larceny.4 And in some of the states these two grades of larcen...

Section 66. Two Classes, Simple And Compound: In some states larceny is divided into two classes: simple larceny, and compound larceny. If the stealing is perpetrated without any aggravating circumstances attending the theft, such for instance a...

Section 67. Taking And Carrying Away: The taking of the property is essential and means to get it into one's possession;6 but this does not mean actual manual custody of the property, nor is it necessary that one should accomplish the act...

Section 68. Taken Without Owner's Consent: The goods stolen are usually taken without the knowledge of the owner and hence without his consent. And it has been held that the taking of the goods secretly is essential to the crime of larceny.9 B...

Section 69. By Trick, Fraud, Scheme: Any trick or scheme resorted to for the purpose of getting possession of the property of another and by which it is obtained is larceny. For example, where the negotiation for goods was to be a cash t...

Section 70. Criminal Intent Essential: The mere taking of the property of the owner is not sufficient to constitute larceny. The act must have been done animo furandi, or with criminal intent.14 The criminal intent must exist at the very t...

Section 71. Taken From Owner's Possession: Larceny cannot be committed unless the property was taken from the possession of the owner, either actual or constructive, for the reason that trespass is essential to larceny and there can be no tres...

Section 72. In Custody Of A Servant: Also where the owner of property places it in the keeping of his servant, the possession still remains in him; the servant has merely the custody of the property.19 It is a well settled principle of ...

Section 73. When Is One A Servant: The question as to when one is the servant of another is sometimes a matter of difficulty to determine. Sneed (Tenn.), 285; Hughes Cr. Law, Sec. 386. 19 18 Am. & Eng. Ency. Law, 474. 20 Crocheron vs....

Section 74. Custody For Special Purpose: There is another manner in which larceny may be committed where the offender is not an agent of the owner of the property. This occurs in a case where the owner puts his property in the bare custody o...

Section 75. Three Classes Of Cases: From what has been seen it seems there are three classes of cases in which convictions for larceny at common law may be had where apparent possession is in the accused; first, where the accused has th...

Section 76. Delivered By Mistake: Where the owner of money or property delivers it to another by mistake and that person, knowing the mistake at the time he receives it, conceals the mistake intending at the time to appropriate it to ...

Section 77. Finding Goods And Appropriating: So if one finds the goods of the owner in the highway or elsewhere, containing marks which identify the owner, and the one finding them converts the same to his own use with criminal intent, he is gui...

Section 78. Larceny As Bailee: There is another class of cases in which the offender is said to be guilty of larceny as bailee. Thus for illustration, if the owner of a horse entrusts it to another to sell and deliver the proceeds ...

Section 79. Bailee Breaking Package: If one to whom goods have been entrusted as bailee, breaks the bulk and appropriates the same or any part of them with intent to steal, he is guilty of larceny, but not so if he should take the entire...

Section 80. Value Of The Property Taken: The article or thing taken must be of some value to make it the subject of larceny and the value must be alleged and proven. It is especially necessary to prove the value of the property stolen for th...

Section 81. Property Of No Value: Articles or things of no intrinsic value, such as bills, bonds and notes, are not the subjects of larceny at common law;38 but generally by statutory definition all such articles or things are the sub...

Section 82. Wild Animals And Dogs: Larceny cannot be committed in taking wild animals in which there is no property; that is, which are owned by no one, such as deer, hares, conies, or other wild animals in the forest, chase or warren,...

Section 83. Taking One's Own Property: The property taken or stolen must be that of another according to the definition of larceny. One cannot steal his own property or property owned by him with others. Thus a tenant by contract having a ...

Section 84. Evidence Of Recently Stolen Property: As a general rule one who is found in possession of recently stolen property without giving any reasonable explanation of how he came into possession of it, is presumed to be the person who stole it,4...

Section 85. Evidence Of Other Stolen Goods: Evidence that the defendant was found in possession of other articles of property stolen at the same time and place when that with which he is charged with stealing was taken, is competent,57 as tendi...

Section 86. Evidence Of Similar Coins And Jewelry: Coins or money similar to the money stolen, found in the stockings of the accused soon after the theft, are competent to go in evidence as tending to identify the money charged to have been stolen.63 ...

Section 87. Variance In Proof And Allegations: In larceny as well as in other criminal offenses, the evidence must correspond with the allegations. Hence if the evidence as to the description of the money or other articles of property varies mater...

Receiving Stolen Property. Section 88. Definition And Elements: The buying, receiving or concealing of stolen property with the intent to prevent the owner from recovering it, knowing it to have been stolen by another, constitutes the offense of receiving stolen p...

Section 89. Evidence, Knowledge, Intent: The fact of guilty knowledge may be established by circumstantial evidence.74 The declarations and conduct of the accused may be shown in evidence as tending to prove his guilty knowledge.75 Evidence...

Section 90. Embezzlement - Definition And Elements: Embezzlement is the fraudulent appropriation or conversion of the personal property of another by-one to whom the owner has entrusted the possession of it under some fiduciary relation as agent, clerk...

Section 91. Embezzlement Differs From Larceny: Embezzlement differs from larceny in this: the fraudulent conversion is committed without a trespass, the offender having obtained the possession of the property lawfully with the consent of the owner...

Section 92. Who Can Commit Embezzlement: Some of the numerous statutes relating to embezzlement are very general, in that they define the offense without stating what class or classes of persons come within their terms in a fiduciary capacit...

Section 93. Agent, Clerk, Servant, Officer: The courts have been frequently required to construe the statutes relating to embezzlement for the purpose of determining who is an agent, clerk, servant, bailee, public officer, and the like. The te...

Section 94. Criminal Intent Essential: A criminal intent to defraud is an essential element of embezzlement. There is no offense if a criminal intent is wanting;102 but the intent may be inferred from an act done, such, for instance, as a ...

Section 95. When Not An Offense: Under some statutes where a person is charged with embezzling money or goods coming to his possession, by virtue of his office or employment, a conviction cannot be had unless he so received the mon...

Section 96. Taking One's Own Is No Offense: In embezzlement, as in larceny, one cannot be guilty of embezzling money or goods owned by him, or in which he has an interest as partner and of which he is legally entitled to the possession.108 But ...

Section 97. Debtor And Creditor Merely: Where a transaction between an employer and employe, or between a principal and his agent, creates the relation of debtor and creditor merely, there can be no offense if the one intrusted with the mon...

Section 98. Series Of Acts One Transaction: Embezzlement may consist of many acts done during a long period of time. Such series of acts constitute the corpus delicti; and in such case the prosecution should not be required to elect on which of...

False Pretense. Section 99. Definition And Elements: A false pretense is such a fraudulent representation of an existing or past fact by one who knows it not to be true as is adapted to induce the person to whom it is made to part with something of valu...

Section 100. False Pretense Differs From Embezzlement: In the offense of false pretense the owner parts with the title as well as the possession of his goods, while in embezzlement the accused obtains the lawful possession of the goods but not the title t...

Section 101. The Obtaining By False Representations: The obtaining of the property must be accomplished by false representations, and must be actual and not constructive.122 It is the actual obtaining of the goods that constitutes the offense and not th...

Section 102. Past Or Existing Fact Essential: The false representations necessary to constitute the offense of false pretense must relate to some past or existing fact, and not to something that shall happen in the future.129 A mere false promise...

Section 103. Intent And Knowledge Essential: An intent to cheat and defraud in obtaining the property of another is the gist of the offense.135 If the intent to defraud is wanting there is no offense. Thus, if one by false representations obtain...

Section 104. Statements Of Mere Opinion: False statements which amount to a mere matter 135 Woodruff vs. State, 61 Ark., 179; Weyman vs. People, 4 Hun. (N. Y.), 516; People vs. Baker, 96 N. Y., 304; Sharp vs. State, 53 N. J. L., 511. 136 ...

Section 105. Representations Relied Upon Deceptive: And a false representation to become the basis of false pretense must be of such nature as tends to deceive the person to whom made, for if he could not be deceived thereby, or if he knew at the time ...

Section 106. Cheating The Public Essential: Any cheating by means of any false token such as false weights, measures, brands or marks affecting or tending to affect the public generally are criminal offenses at common law.148 143 People vs. Ja...

Section 107. Relating To Real Estate: One may commit the offense of false pretense by fraudulently representing that he is the owner of real estate,150 or by fraudulently representing that the property is free from incumbrances, when the ...

Section 108. Evidence Of Other Transactions: As a general rule the evidence must be confined to the specific charges set out in the indictment.158 This rule excludes evidence of all distinct transactions having no connection with the charge all...

Section 109. Evidence Of Complicated Business Relations: Where it appears that the offense charged is based upon complicated business relations between the prosecutor and the accused it is competent to show the course of dealing between them, not only befor...

Section 110. Evidence Of One Of Several Charges: Where several material matters of fact are charged as false pretenses the prosecution is not required to prove all of them; proof of any one of them is sufficient.161 ...

Fraudulent Conveyances. Section 111. What Constitutes The Offense: The practicing of fraud upon innocent persons in the sale of real estate as well as personal property is of common occurrence, and is the subject of criminal prosecutions. Statutes exist in a consider...

Robbery: Section 112. Definition and Elements. Robbery is the felonious and forcible taking from the person of another, his goods or money of any value, by violence or putting him in fear.168 The gist of the...

Section 113. Offense Not Robbery, When: If the property be taken without any sensible or material force, the crime is larceny and not robbery.174 So if the property be taken by means of some trick without force or violence the offense is n...

Burglary. Section 114. Definition And Elements: Burglary is the breaking and entering into the dwelling house of another in the night time with intent to commit a felony.180 A burglar is he that by night breaketh and en-tereth into a mansion-house...

Section 115. Breaking And Entering Essential: There must be a breaking and entering as well as the intent to commit a felony or other offense.184 Actual breaking means the making of an opening or mode of entrance into a building by some degree o...

Section 116. Breaking In The Night Time: Under the common law definition of burglary the breaking and entering must take place in the night time. On this element of the crime Blackstone makes the following comment: As to what is reckoned ni...

Section 117. Servants Committing Burglary: If a servant having charge of a house enters one of its rooms which he is not permitted to enter and steals goods therein, he is guilty of burglary.195 So a domestic servant having charge of a house,...

Section 118. Burglary Of A Dwelling-House: Every house used for the dwelling and habitation of man is taken to be a mansion-house within the meaning of the law. 194 4 Blackstone Com., 224; 1 Hale, P. C, 550; Hughes Or. Law, Sec. 693. 195 Hil...

Section 119. Burglary Of Storehouse, Warehouse, Shop: Under statutory provisions relating to the burglary of different buildings, warehouse includes a covered structure, used for storing bales of cotton, though open on one side or end.204 And warehouse...

Section 120. "Any Other Building" Defined: The words any other building in which the crime of larceny may be committed is of the same kind with the particular class mentioned and will include chicken houses, though the term chicken-house is ...

Section 121. Felonious Intent Essential: A felonious intent is an essential element to constitute burglary. The person breaking and entering a building must intend to commit a felony therein under the common law, otherwise there is no offens...

Section 122. Evidence Of Goods Taken By Burglary: One found in the possession of recently stolen goods taken in the commission of a burglary will be presumed to have committed the burglary in the absence of any reasonable explanation as to how he cam...

Forgery. Section 124. Definition And Elements: Forgery is the fraudulent making or alteration of a writing to the prejudice of another's rights.219 The writing alleged to be forged must be such an instrument which, if genuine, would be effective,...

Section 128. Instruments Not Subjects Of Forgery: An instrument absolutely void on its face which could work no injury to any one cannot be made the subject of forgery, if genuine.231 Also if an instrument is so imperfect and so incomplete that no o...

Section 129. Uttering A Forged Instrument: The offense of uttering a forged instrument consists in offering it to another with the intent to defraud, knowing that it is forged.239 The uttering of a forged instrument is a separate and distinct...

Section 130. Possession, Delivery, When No Offense: The mere making and having possession of a forged instrument do not necessarily show an intent to defraud; such making or possession is evidence, it is true, but it cannot be said that it proves a fra...

Section 131. The Person Defrauded: It is not essential to show that the accused intended to defraud the particular person named in the indictment.249 According to this principle it is not necessary to allege to whom nor by whom the fo...

Section 132. The Forged Instrument As Evidence: The instrument alleged to have been forged must be produced on the trial or its absence accounted for, before secondary evidence of its contents is admissible;253 and when the instrument cannot be pro...

Section 133. Evidence Of Other Forgeries: Evidence that the accused committed other similar forgeries about the same time of that charged, is competent to show criminal intent.256 And of course several forgeries may be shown in evidence where...

Arson. Section 134. Definition And Elements: Arson is the malicious burning of the house of another. The term house imports a dwelling house at common law.262 Arson is a felony at common law. 255 State vs. Lowry, 42 W. Va., 205. 256 State vs. S...

Section 135. Other Buildings Included: A school house is included in the words of the statute, any other outhouse not part of the dwelling-house. And dwelling-house includes a school-house.271 The statutory words, barn, stable, coach-h...

Section 136. Burning One's Own House: It is not arson for one to burn his own house; it must be the house of another.276 A tenant is not guilty of arson in burning the building occupied by him as a tenant.277 And if the owner of a house ...

Section 137. Malicious Intent; Motive: To constitute arson the burning must be wilful and malicious.280 Hence a burning resulting from mere negligence or mischance is not arson.281 An intentional burning makes the act wilful and maliciou...

Section 138. Corpus Delicti, Evidence Showing: When the general fact of burning has been shown by circumstances excluding accident or natural causes as the origin of the fire, then the foundation is laid for the introduction of any competent evide...

Section 139. Evidence Of Burning Other Buildings: Evidence of the burning of other buildings about the same time in the same locality is competent as tending to prove the burning charged where the different acts appear to have been connected as one t...

Malicious Mischief. Section 140. Definition And Elements: Malicious mischief is the wilful or wanton destruction of or injury to property. Statutes of the different states relating to this subject differ. Some statutes relate to personal property only, othe...

Section 141. Killing And Wounding Animals: By the common law as well as by statutes it is a criminal offense to shoot, wound or kill domestic animals found trespassing upon one's premises. The owner of the premises may use the necessary force ...

Section 142. Malicious Intent Essential: Under statutes as well as the common law, the real essence of the offense is malice toward the owner of the animal killed or injured.304 To constitute the offense it must appear that the injury was do...

Section 143. Intent Not Essential, When: But under other statutes, malice toward the owner of the property is not essential; it is sufficient if the act be done wilfully, without just cause or excuse, or wantonly and recklessly.306 So the f...

Blackmail, Extortion, Threats. Section 144. Definitions And Elements: In common parlance, blackmail is extortion- the exaction of money for the performance of a duty, the prevention of an injury, or the exercise of an influence. It imports an unlawful service and an inv...

Section 145. Who May Commit Extortion: None but officers can commit the offense of extortion.316 Nor are there accessories in extortion.317 And extortion may be committed by any officer, whether federal, state, county, municipal, or judici...

Section 146. Corrupt Intent Essential: As a general rule, a corrupt intent is an essential element of this offense.322 But notwithstanding this rule, it is held that an officer charged with extortion can not excuse his act through mistake ...

Section 147. Criminal Threat Defined: A threat is any menace of such a nature and extent as to unsettle the mind of one on whom it operates and to take away from his acts that free, voluntary action which alone constitutes consent.330 A m...

Game And Fish. Section 148. Statutes Regulating: In many of the states there are statutes regulating the killing of certain kinds of wild birds and the catching of fish during certain seasons of the year. Game and fish, like air and water, to a larg...

Section 149. Fish When Not Public Property: But if the body of water, such as a lake or pond, has become private property by draining or filling without infringing any public right, the rule of ownership is different.347 A statute which prohibi...

Section 150. Killing Wild Birds Forbidden: So, also, statutes which prohibit the killing and selling of certain kinds of birds during a certain season of each year are valid,-349 and these statutes include any such birds shipped into one state...

Chapter IV. Offenses Against Public Morals. Abortion. Section 151. Definition And Elements: Abortion is the unlawful, premature expulsion of the fetus, or of the living child from a pregnant woman, by any artificial means, at any time of pregnancy, solely for the purpose of preventing the bi...

Section 152. Act When Not An Offense: To procure an abortion within the meaning of the statute implies an intention to produce that effect, and one who by violence, but without any purpose to cause such a result, does an injury to a pregn...

Section 153. Giving Noxious Drug: The giving of a noxious drug to a woman with intent to produce an abortion is a misdemeanor at common law.5 The thing administered to procure the miscarriage of a woman then pregnant with child must b...

Section 154. The Woman Consenting: The woman on whom the operation for procuring an abortion is performed is not an accomplice.7 The consent of the woman that an abortion may be performed on her is no defense,8 nor is her threat to com...

Section 155. Death Caused By Abortion: If the death of the woman is caused by the unlawful attempt to procure abortion, such killing will at least be manslaughter.10 ...

Section 156. Matters Of Evidence: Evidence of different attempts at about the same time to produce a miscarriage on the same woman is admissible as parts of the same transaction.11 The fact of pregnancy by illicit intercourse may be s...

Adultery; Fornication. Section 157. Definition And Elements: Blackstone says: Adultery is criminal conversation with another man's wife.13 According to this definition, the woman must be another man's wife; and any man, whether married or single, having illicit...

Section 158. Statutory Definitions Of Adultery: Statutes exist in the different states making adultery and fornication criminal offenses, but generally omit to state of what the offenses shall consist. The courts, therefore, have adopted the common...

Section 159. Living Together Openly: Under the statutes of some of the states the living together of the man and woman must be open and notorious.19 If a married man lives openly and notoriously with a married or unmarried woman, he is g...

Section 160. Fornication Defined: Fornication is the carnal and illicit intercourse of an unmarried man with an unmarried woman. In other words, they must both be single.22 17 Com. vs. Call, 21 Pick (Mass.), 509; Helfrich vs. Com., 3...

Bigamy. Section 161. Definition And Elements: Bigamy is the unlawful marriage of a person to another when he or she already has a lawful wife or husband living. The first wife or husband must be living at the time of the second marriage.25 And, o...

Section 162. Form Of Marriage Ceremony: No particular form of marriage ceremony is necessary to make a marriage lawful. Marriage by mere consent of the parties is sufficient when followed by mutual assumption of marital rights, duties and o...

Section 163. Absence Of Husband Or Wife: An honest belief based upon reasonable grounds that an absent wife or husband is dead, is a good defense to a charge of bigamy, though the second marriage took place within the statutory period. Thus,...

Section 164. Decree Prohibiting Marriage: Where a divorced person is prohibited from marrying again without leave of the court, but goes into another state and is there lawfully married to a second woman, he will not be guilty of an offense i...

Section 465. Void Marriage; Void Divorce: It is no defense to a charge of bigamy that one believes his first marriage was void and that the absence of the wife released him.37 Nor can one insist upon a void divorce as a defense though he may ...

Section 166. Evidence To Prove Former Marriage: To establish a charge of bigamy the prosecution must prove the first or prior marriage; and this may be done by producing the record or a certified copy of it as provided by law.39 Such record evidenc...

Section 167. Wife As A Witness: The first wife is not a competent witness against her husband, nor can she make complaint against him.46 The second wife is a competent witness after the first marriage is clearly proved and not contr...

Incest. Section 168. Definition And Elements: Incest is the carnal copulation of a man and woman related to each other in any of the degrees within which marriage is prohibited by law.48 The carnal copulation may be either by marriage,49 or witho...

Section 169. Consent, When And When Not Essential: Under the statutes in some states, incest can only be committed with a female over the age of fourteen years, with consent of the parties;51 but under other statutes, consent of both of the parties is...

Section 170. Relationship Of The Parties: By construction of the statute, the relationship of brother and sister includes brother and sister of the half-blood.55 And this crime may be committed where the relationship is illegitimate, as by a ...

Section 171. Knowledge Of Relationship: Whether knowledge of the relationship of the parties is or is not an essential element depends upon the statutory definition of the offense. Under some statutes knowledge is essential.60 In other sta...

House Of ILL-Fame. Section 175. Definition And Element: A house of ill-fame is a house kept for the convenience of persons desiring unlawful sexual intercourse and in which such intercourse is practiced.69 A bawdy house and house of ill-fame mean substanti...

Section 176. What Is Not A Bawdy House: The residence of an unchaste woman, a single prostitute, does not become a bawdy house merely because she admits one or many men to have illicit cohabitation with her. The house must be a common resor...

Section 177. The Letting Of Rooms: The letting of rooms to prostitutes for the purpose of prostitution is keeping a house of ill-fame, though the occupants are mere lodgers.81 A flat boat on which persons live and sleep may become a h...

Section 178. Leasing For Bawdy House; Nuisance: If the owner of a house leases it for the purpose of keeping a bawdy house, or with knowledge that it is to be kept for that purpose, he is liable criminally.84 A bawdy house or house of ill-fame is a...

Section 179. Reputation Of Inmates Competent: The general reputation of the inmates and frequenters of the house for chastity, including the keeper, is competent against the accused for keeping a house of ill-fame.86 So is the lewd conduct and co...

Section 180. Reputation Of The House Incompetent: But the general reputation of the house cannot be shown on a charge of keeping a house of ill-fame,88 and, of course, the prosecution is not required to show that the house had a bad reputation as bei...

Section 181. Reputation In Proving Nuisance: But on a charge of maintaining a nuisance by keeping a house of ill-fame, the bad reputation of the house, as well as the bad reputation of the inmates, is competent.91 A woman may be shown to be a pr...

Seduction. Section 182. Definition And Elements: Seduction is the persuading of an unmarried female of chaste character to surrender her virtue by submitting herself to illicit intercourse, upon promise of marriage or other enticing inducement. By s...

Section 183. Promise Of Marriage Inducing Cause: To constitute this offense the consent of the female to submit to carnal intercourse must be upon the sole consideration of the promise of marriage or other inducement;97 but it is not material how lo...

Section 184. Chaste Character Of The Female: The virtue of the female is of the essence of the offense, although the words of previous chaste character may not be embodied in the statute defining it.104 A female of previous chaste character is...

Section 185. Female Consenting, No Offense: It follows from what has been said, that if a female, able to understand the nature of the offense, voluntarily submits to sexual intercourse before committing the act, there is no seduction, although...

Section 186. Offer To Marry No Defense: An offer to marry the female after the commission of the offense is no defense, even where by statute marriage of the parties would bar a criminal prosecution.111 But although a willingness to marry ...

Section 187. Matters Of Evidence: The offense of seduction is generally established by proof of circumstances, such as courtship for a length of time,113 previous familiarities, correspondence, propositions of affection, conversations...

Section 188. Chaste Character Essential: Under statutes containing the words previous chaste character of the female in defining the offense, it is competent to show specific acts of sexual intercourse, lewdness, obscene talk, or immoral c...

Section 189. Chastity, When And When Not Presumed: In some states the chastity of the female is presumed and the burden is on the accused to impeach it;120 but in other states the courts hold that this presumption of chastity is overcome by the presum...

Section 190. Impeaching Female's Chastity: The lewd disposition or lascivious conduct of the female and her relations with other men, such as kissing and embracing, may be shown in evidence as tending to impeach her chastity.123 But mere impr...

Section 191. Corroboration Of Female Required: In some states there are statutes which require that the female involved shall be corroborated before a conviction can be had, but this extends only to the promise of marriage and sexual intercourse.1...

Gaming. Section 192. Definition And Elements: Gaming is an unlawful agreement between two or more persons to risk money or any other thing of value on a contest or chance of any kind, where one must gain and the other lose.129 The controlling el...

Section 193. Many Kinds Of Games: There are many different kinds of games and devices on which money is won and lost, but the statutes are generally comprehensive enough to cover all of them. The name of the game is not material. The...

Section 194. Betting On A Game: Persons who bet on any game others are playing are guilty of gaming.137 ...

Section 195. Value Of The Thing Bet: The thing bet must be something of value, but the amount is not material.138 Something having intrinsic value must be bet or wagered on the game.139 Playing a game of cards for drinks as it is commo...

Section 196. Gaming Not A Continuing Offense: Each of several distinct bets on a gaming device is a separate offense though done at the same sitting. Betting on such device is not a continuing offense.143 But the keeping of a gaming house is a c...

Section 197. Gaming In Public Place: There are statutes against the offense of gaming in public houses. A public house within the meaning of such statutes is not limited to houses which actually belong to the public, such as a courthouse...

Section 198. Speculating On The Markets: The making of contracts for the sale or purchase of grain or other products in the way of speculating on the rise and fall of the prices of such products, where the grain or products are not actually ...

Gaming House. Section 199. Definition And Elements: A common gaming house is a house where persons habitually resort for the purpose of gaming for money or other thing of value. Such a house is a nuisance at common law and punishable as a misdemeanor.1...

Section 200. Fair Associaiton Inclosure: In Illinois a statute permitting betting within the inclosure of a fair or association during the actual time of the meetings of the association is no protection against such betting within the inclos...

Section 201. Noise Or Kind Of House Immaterial: Noise or actual disturbance is not essential to complete the offense of keeping a gaming house;165 nor is the nature or kind of house material, whether in a public house or private dwelling house, or ...

Section 202. Owner And Manager Liable: A person having general charge and supervision of a place as an employe of a gaming house is regarded as the keeper.167 160 Bollinger vs. Com., 98 Ky., 574; Hughes Cr. Law, Sec. 2194. 161 Swigart vs...

Section 203. Matters Of Evidence: Evidence of the general reputation of the frequenters of the house in question, including the accused, as being gamblers, has been held competent on a charge of keeping a gaming house.172 One visit t...

Lottery. Section 204. Definition And Elements: A lottery is a scheme for the distribution of prizes; a game in which a price is paid for a prize;176 a game of hazard in which small sums of money are ventured for the chance of obtaining a larger va...

Section 205. Schemes Held To Be Lottery: In determining whether a certain scheme is a lottery or not, the court will look to the substance of the transaction and not the mere name.181 Thus for example, where the scheme or plan of an enterpr...

Section 206. Federal Statute Against Lotteries: The federal statute of 1895, which makes it a criminal offense to carry from one state to another any paper purporting to be or represent a ticket, chance, share or interest in or dependent upon the e...

Obscene Literature And Pictures. Section 207. Definitions And Elements: Statutes exist in the different states against obscenity in all its different forms, declaratory of the common law. The uttering of obscene language in public and the printing and publication of obsce...

Section 208. The Test Of Obscenity: The test of an obscene book is stated to be whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, who might come in co...

Section 209. Sending Through The Mails: The offense of sending obscene, lewd or lascivious books, pictures and the like through the mail, cannot be excused on the ground that they were sent in the interest of science, morality or philosophy...

Section 210. Publication, What Constitutes: To constitute the publication of an obscene print or picture it is not necessary that it should be exhibited to the public, but a private sale or exhibition is sufficient.198 ...

Sodomy; Crime Against Nature. Section 211. Definition And Elements: Sodomy is the carnal copulation of one human being with another in a manner against nature, or to be more definite, in any manner than that provided by nature. Bestiality is the carnal copulation of a...

Chapter V. Offenses Against Public Justice. Bribery. Section 212. Definition And Elements: Bribery is when a judge or other person concerned in the administration of justice takes any-undue reward to influence his behavior in office.1 Bribery is the taking or offering a reward to influence...

Section 213. Offering A Bribe Without Acceptance: Under some statutes it is an offense to solicit a bribe though none is offered.8 The offense is complete by the offer of the bribe so far as the offer is concerned; and if the offer is accepted both ...

Section 214. Persons Included In The Statute: The federal statute defining bribery is comprehensive enough to include others who are not public officers, such as detectives in the service of the government.13 A police officer is included in a st...

Section 215. Bribing Voters: Relating to the bribery of voters Blackstone says: If any money, gift, office, employment, or reward be given or promised to be given to any voter, at anytime, in order to influence him to give or wit...

Section 216. What Is And What Is Not A Defense: The fact that a public officer expresses his willingness to accept a bribe is no defense;18 nor is it a defense that the bribe was given by the prosecuting witness.19 The thing offered as a bribe mus...

Embracery. Section 217. Definition And Elements: Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, en-treatments, money, entertainments, and the like; and punishment is provided for the person embracing and ...

Malfeasance In Office. Section 218. Nature Of The Offense: Any public officer who being prompted by corrupt or dishonest motives, does any act as an officer which he is not by law authorized to do, in such a manner as is likely to deceive and mislead others, ...

Section 219. Ignorance Of Law No Excuse: An officer collecting fees or costs which he is not entitled to collect, cannot excuse his act by saying he did not know the collection was illegal.33 A public officer shall be held responsible for t...

Section 220. Mere Error Of Judgment No Offense: But a mere error in judgment from sound policy is not sufficient to subject a tribunal to prosecution for palpable omission of duty.35 One on a charge of wilfully intruding into a public office may s...

Resisting An Officer. Section 221. What Constitutes The Offense: The officer resisted must be authorized to execute some legal process, in the execution of which he is resisted; and he must be authorized to serve or execute the writ at the time he is resisted, to c...

Section 222. May Resist Officer, When One May Lawfully Resist An Officer Seeking To Serve Process Issued Without Jurisdiction: 42 Or an officer in attempting to execute his writ by taking the wrong person may be resisted.43 So an officer using unreasonable violence in making an arrest may be resisted.44 ...

Section 223. Proving Person An Officer: That the person resisted was an officer may be shown by parol evidence without producing his commission.45 So when a person has acted notoriously as a public officer this is sufficient evidence of his...

Perjury. Section 224. Definition And Elements: Perjury consists in wilfully and falsely swearing to a fact material to the point in issue before a court or tribunal having legal authority to inquire into the cause or matter investigated.47 Another...

Section 225. Subornation Of Perjury Defined: Subornation of perjury is the offense of procuring another to take such false oath as constitutes perjury in the principal.50 In order to convict one of subornation of perjury it must appear that the...

Section 226. Officer's Authority To Administer Oath: It is material on a charge of perjury that the oath taken by the witness must have been lawfully administered by an officer having authority and jurisdiction to swear the witness.52 A jurat of the cl...

Section 227. The Form Of Oath Taken: There must have been some oral form of oath administered to the witness as required by law, but a departure from a form prescribed by statute is not material.58 ...

Section 228. The Court Must Have Jurisdiction: And the case or proceeding in which the oath was administered must be one of which the court or tribunal had jurisdiction.59 Hence swearing falsely in a void proceeding or before a body illegally con...

Section 229. Testimony Must Be Material: It is essential that the testimony given by the witness alleged to be false must be material to the issue, otherwise there is no offense, however false and corrupt the testimony may have been.62 But ...

Section 230. Materiality Is Question Of Law: Whether the matter testified to upon which perjury is assigned is or is not material is a question of law for the court to decide, and not the jury.67 But if by statute the jury are made the judges o...

Section 231. Must Swear Wilfully Falsely: The testimony upon which perjury is assigned must have been given by the witness wilfully and corruptly, knowing that it was false.69 63 Queen vs. Baker, L. R. I. Q. B., 797; State vs. Day, 100 Mo., ...

Section 232. Perjury By Making Affidavit: Perjury may be committed in any matter or proceeding where the law requires an oath to be taken; for instance, in an affidavit for a continuance of a cause;74 or in swearing wilfully falsely before a ...

Section 233. Inciting One To Commit Perjury: But under a statute providing that if any person endeavor to incite or procure another to commit perjury, though no perjury be committed, he shall be punished; a cause actually pending is not essent...

Section 234. Acquittal Of The Accused: The acquittal of one charged with adultery in which he testified that he had not had sexual intercourse with the woman involved, bars a prosecution against him for perjury in so testifying in the adul...

Section 235. Matters Of Evidence: Under the common law, the oath of the accused must be contradicted by at least two witnesses before a charge of perjury can be sustained, for the reason that the testimony of one witness is simply one...

Compounding Offenses. Section 236. Definition And Elements: Compounding a crime consists in taking money, goods or other amends on an agreement not to prosecute.88 This offense is a misdemeanor at common law. If a person injured receives anything of value in ...

Section 237. Compounding Permitted, When: In some of the states statutes exist permitting minor offenses to be compromised where made by approval of the court in which pending.93 One in retaking his own goods which have been stolen or embezz...

Rescue. Escape. Section 238. Definition And Elements: Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offense in the stranger so rescuing as it would have been in a gaoler to have voluntar...

Section 239. Permitting Prisoners To Escape: A person who being a prisoner in lawful custody or confinement, regains his liberty either with or without force before his legal discharge, or who having a prisoner lawfully in his custody, suffers h...

Section 240. Aiding And Abetting Escapes: One who conveys disguises, weapons and the like into a jail with the intent to aid or assist a prisoner to escape commits an offense.101 Persons aiding and abetting prisoners to escape are alike guil...

Section 241. Prisoner May Escape, When: But on the other hand a person who is unlawfully imprisoned may break jail and regain his liberty without committing escape; and so to assist one in securing his liberty when unlawfully held or impris...

Tampering With Witnesses. Section 242. What Constitutes The Offense: A wilful and corrupt attempt to prevent the attendance of a witness before a lawful tribunal is an offense at common law. The essence of the offense is the attempt to interfere with and obstruct the ...

Section 243. The Offense Of Contempt: The authority to punish contempts is a necessary incident inherent in the very organization of all legislative bodies and of all courts of law and equity independent of statutory provisions.109 The l...

Section 244. What Constitutes Contempt: Any conduct which is calculated to interfere with the proceedings of the court, such as by assaulting witnesses or litigants within the precincts of the court or preventing or hindering or endeavoring...

Chapter VI. Offenses Against Peace And Order. Conspiracy: Definition and Elements. A conspiracy is a combination of two or more persons, by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself cr...

Section 245. An Overt Act Essential: But in some jurisdictions the offense is not complete unless some overt act be committed by one or more of the persons to the conspiracy to affect the object intended.5 1 Hughes Cr. Law, Sec. 1185; 3...

Section 246. Each Liable For Acts Of All: Each of the parties to a conspiracy shall be liable for the acts of the others done in carrying out the general design, even though the means are not specifically agreed upon by which to accomplish th...

Section 247. One Departing From Design: But if one of the parties on his own motion, departs from the original design and commits a different offense than that intended by the conspiracy, and which is not a probable consequence of the acts ...

Section 248. Conspiracy Merged, When: At common law a conspiracy to commit a felony is only a misdemeanor, and if the felony be actually committed, then the conspiracy is merged in the felony. Thus if the conspiracy is to commit arson and...

Section 249. Conspiracy, For What Purpose: A conspiracy may be formed for the purpose of committing a crime, or it may be formed for the purpose of accomplishing some unlawful act which is not a crime if committed by one person alone. 10 Watt...

Section 250. No Offense, When: But where the concerted action or combination is for the purpose of accomplishing some lawful act without resorting to criminal or unlawful means then there can be no offense. Thus for example, it is...

Section 251. Evidence In Proof Of Conspiracy: After the prosecution has introduced sufficient evidence to establish prima facie, a conspiracy between the parties tending to show a common purpose as charged, then the declarations of one of the acc...

Section 253. Disturbing A Family: Under the head of disorderly conduct may be classed the disturbance of the peace and quiet of a family; and a family will include one woman occupying her dwelling alone.28 22 Hughes' Cr. Law, Sec. 12...

Section 254. Disturbing Public Meetings: The disturbance of public meetings of people met for a lawful purpose also are offenses. This includes meetings for religious worship,29 in either a public or private place;30 and all denominations ar...

Section 255. Public Or Private Schools: It is an offense to disturb public or private schools and a singing school kept for culture and improvemen comes within the protection of the law. But to constitute a school there must be a master who...

Affray. Section 256. Definition And Elements: An affray is the fighting of two or more persons 28 Noe vs. People, 39 Ill., 97; Bones vs. State, 117 Ala., 146; See State vs. Schlottman, 52 Mo., 164. 29 State vs. Kirby, 108 N. C, 772 (Held not v...

Disorderly House. Section 257. Definition And Elements: A disorderly house is a house in which people abide or to which they resort, disturbing the repose of the neighborhood, or where the conduct of the inmates is injurious to the public morals, health, s...

Section 258. Resort Of Dissolute Persons: The offense of keeping a disorderly house may be committed by permitting lewd women to resort to a dancing hall where liquors are sold and spend their time in lewd conduct, such as sitting in the laps...

Section 259. Places Of Committing The Offense: This offense may be committed not only in a dwelling-house, but in other buildings or places, such as a boat, or tent.48 But disorderly conduct in a private house, such as gaming or fighting, does not...

Section 260. Efforts To Prevent Disorder: It is no defense to a charge of keeping a disorderly house that the owner or manager endeavored to prevent disorderly conduct, breaches of the peace and other like conduct in, upon or about his premis...

Section 261. Proving House To Be Disorderly: That a house bears the reputation of being a disorderly house is not sufficient to prove the charge.51 But such general reputation is competent as tending to prove it is such a house.52 Evidence of t...

Intoxicating Liquors. Section 262. What Constitutes The Offense: The usual violations in the sale of intoxicating liquors consist of the unlawful sale without a license; sales to minors without the written authority from their parents or guardian; sales to intoxica...

Section 263. Statutes Regulating The Sale: But statutes exist generally in the different states regulating the liquor business in one form or another, forbidding any person to engage in the sale thereof without a license. A reference to the s...

Section 264. What Liquors Are Included: The words of the statute include any kind of liquor, no matter by what name it may be called, if it produces intoxication when used as a beverage.63 59 Ill. Stat., Chap. 43, Sec. 1. 60 Ill. Stat., Ch...

Section 265. Shift To Evade The Law: Intoxicating liquors sold by any shift or device to evade the law is a violation. Thus where the evidence shows that the accused sold cigarettes at ten cents each and gave the purchaser a drink of whi...

Section 266. Social Clubs, Liable, When: Persons who organize themselves into a society or club and by its agent sell to the members of the club, by means of a ticket which is punched on making a purchase, violate the law by a shift.70 But ...

Section 267. One Purchasing For Others: Where several persons make up a sum of money together to purchase liquor and one of them procures it with the money so contributed, there is no violation.72 So, also, one who merely purchases intoxica...

Section 268. Principal And Agent Liable: The principal and his clerk or agent are both liable for any unlawful sale made by the clerk or agent;74 and the principal is liable although the sales were made by his clerk without his knowledge and...

Section 269. Wife Selling For Her Husband: The wife making unlawful sales when her husband is present renders him liable as well as herself.80 But unauthorized sales made by the wife in the absence of her husband do not make him liable.81 ...

Section 270. Druggists And Physicians: Druggists and physicians are not exempt from the provisions of the law. They stand on the same footing with others.82 Sales of intoxicating liquors made by a practicing physician for medicine without ...

Section 271. To Be Drunk Upon The Premises: A street or alley adjacent to the place where intoxicating liquor is sold, is within the statutory prohibition making it unlawful in selling to be drunk in or upon the premises where sold, or any prem...

Section 272. Knowledge, Intent, Immaterial: Intention or guilty knowledge is not an essential element of the offense of selling intoxicating liquors. 82 Wright vs. People, 101 Ill., 137; Barton vs. State, 99 Ind., 89; U. S. vs. Smith, 45 Fed.,...

Sunday Laws. Section 273. Definition And Elements: Sunday is the first day of the week - the Lord's day, and is universally recognized by the law as the day set apart for the cessation of labor and business generally, especially any business which ten...

Section 274. Keeping Open Business Places: The keeping open of dramshops and places where intoxicating liquors are sold is the principal business which the Sunday laws attempt to prohibit absolutely on the Sabbath day, commonly called Sunday, ...

Section 275. Engaging In Usual Occupation: The statutes forbidding persons to engage in their usual vocations on Sunday, usually except any work of necessity and charity. Thus, bakers, bona fide, engaged in their business of baking on Sunday c...

Section 276. Barber Shops On Sunday: In some states it is held that the keeping open of a barber-shop for shaving persons is a work of necessity, but generally such business is not regarded as a work of necessity on Sunday.97 A statute o...

Section 278. Selling Ice Cream; Newspapers: The keeping open a place of business on Sunday and selling ice cream and meals to be eaten on the premises has been held to be a violation of a statute forbidding the keeping open any shop, restaurant...

Section 279. Keeping Open Tippling House: Of course, the keeping open of dram-shops on Sunday where intoxicating liquors are sold is not regarded as a business of necessity, and it may be doubtful whether such business is a work of necessity ...

Dueling. Section 280. What Constitutes The Offense: The fighting of a duel is an offense at common law as well as by statute. And if such fighting results in the death of any one, then all the participants, as principals, seconds, spectators, or others...

Carrying Concealed Weapons. Section 281. Definition And Elements: The statutes prohibiting the carrying of weapons concealed upon the person are not an infringement of the constitutional right of the people to keep and bear arms,110 but the design of such statutes i...

Section 282. Concealment Of The Weapon: In order to make out this offense it must appear that the weapon carried was concealed upon the person;116 but it need not be entirely concealed. A pistol partly concealed in one's pocket or upon his ...

Section 283. Carrying On One's Own Premises: By statutes, in some states, persons are not forbidden to carry weapons on their own premises. Under such a statute a tenant is the owner of the premises, and not the landlord; the latter does not com...

Section 284. Travelers Exempt From Statute: Under some statutes travelers also are permitted to carry weapons concealed upon their persons. And 116 Ridenour vs. State, 65 Ind., 411; Hughes' Cr. Law, Sec. 1160. 117 State vs. Bias, 37 La., 259;...

Riot. Section 285. Definition And Elements: Blackstone says: A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, as if they beat a man; or hurt and kill game in another's park...

Section 286. Assault And Battery, Included: Riot may embrace assault and battery, and the difference is this: that two or more persons must engage in the unlawful act to constitute riot; while one alone may commit assault and battery.132 ...

Section 287. Common Purpose Essential: To make out the offense it must appear that the persons had a common purpose to do the act alleged.133 And that they acted in concert to accomplish the common purpose.134 The mere presence of one alo...

Section 288. Unlawful Assembly, When Essential: To constitute a riot at common law an unlawful assembly is necessary, and if, when thus assembled, they concoct a breach of the peace and in pursuance thereof execute it, this is sufficient to complet...

Libel. Section 289. Definition And Elements: Libel is the malicious defamation of any person, and especially a magistrate, made public either by printing, writing, signs or pictures in order to provoke him to wrath, or expose him to public hatre...

Section 290. Imputing A Crime Not Essential: It is not necessary that the publication impute a crime, for the offense may be committed by imputing to another the doing of many acts which are not criminal. Thus to publish of another that he is a ...

Section 291. Publications Imputing A Crime: Of course any publication charging another with having committed a crime is libel though the crime charged be but a mere misdemeanor. Thus a publication charging one with having been ejected from a ho...

Section 292. Principal Liable For Agents' Acts: The owner of a newspaper is criminally liable for any defamatory or libelous matter published or put in circulation by his agents or employes, even though done without his knowledge or consent, unless...

Section 293. The Truth Of The Publication, A Defense: The accused may prove the truth of the matter alleged to be libelous no matter what motive prompted him to make the publication;152 but he must prove the entire publication to be true to sustain his d...

Section 294. Publishing Hearsay, No Defense: It is no defense that the accused merely published what had for a long time been currently reported in the community and generally believed to be true.156 Nor is it a defense that the writing was mer...

Obstructing Highways. Section 295. What Constitutes The Offense: A public highway at common law is a common way, free to all the King's subjects to pass and repass at liberty, and an unauthorized obstruction is a nuisance and punishable.158 The placing of any obst...

Section 296. Intent Not Essential: Intent is not an essential element of the offense unless made so by statute. The obstruction is sufficient to constitute the offense, even though the accused believes in good faith that the obstructio...

Section 297. What Constitutes A Highway: Highway commissioners are authorized to lay out public roads when required by the public; but a road may become a public highway, though never laid out by the public authorities. Thus if land be used...

Chapter VII. Offenses Against Government. Violations Of Election Laws. Section 298. What Constitutes Offenses: Offenses committed in violation of the election laws affect society in the gravest manner. An offense against the freedom and purity of elections is a crime against the government. It strikes at the ...

Section 299. Legislative Enactments: But recent legislative enactments regulating public elections contain many provisions designed to defeat and punish corrupt politicians or others who attempt to contaminate the purity of the ballot bo...

Section 300. Voting Illegally: The casting of more than one ballot at an election is an offense where the voter is entitled to cast but one; 6 and it cannot be urged as a defense that the first vote was illegal and could not be cou...

Section 301. The Act Of Voting, Complete, When: The act of voting is complete when a voter presents himself before the election judges at the voting place, hands his ballot to the officers and his name is announced and registered by the clerks of t...

Section 302. Influencing Voters: It is a violation of the election laws to hire a voter to go away from the election polls and refrain from voting, although such person afterwards returns and votes.14 And the giving of money to pay t...

Section 303. Offenses Of Election Officers: Any judge or other officer of an election who wilfully or carelessly neglects his plain duty as such officer is liable to criminal prosecution. Thus an inspector of elections who is entrusted with the...

Section 304. Election Officer, No Offense When: But any slight departure by officers in conducting an election, from unimportant details which do not and cannot defeat the object of the law, is not a violation.24 Officers acting in good faith in t...

Postal Law Violations. Section 305. Statutory Provisions: The federal constitution confers upon Congress the power to establish post-offices and post-roads .28 Among the several statutes enacted by Congress for the establishment and regulation of the post-o...

Section 306. Letter Or Document Ineffective: And the sending of any letter, document or circular through the mail for the purpose of carrying out a scheme to defraud is a violation of the postal laws, although such letter or document may not be ...

Section 307. Counterfeit Money; Lottery Scheme: The sending of circulars through the mail for the purpose of inducing persons to purchase counterfeit money is within the statute forbidding the use of the mails to defraud.31 A lottery is a scheme a...

Section 308. Obscene Letter Or Document: The mailing of a letter containing obscene or indecent matter is within the statute whether the letter is sealed or not, although the envelope may not have on it anything obscene.32 But although a let...

Section 309. Threatening Letter To Coerce: The sending of any letter or communication through the mail which is calculated by the terms or manner of display and obviously intended to reflect injuriously upon the character of another, is an of...

Revenue Laws. Section 310. Criminal Provisions In: The revenue laws of the federal government contain provisions violations of which are made criminal acts, such as the smuggling of imported goods without paying the duty and the retailing of spirituou...

Chapter VIII. Offenses Against Health. Adulteration Of Food. Section 311. What Constitutes The Offense: The adulteration of food stuffs by the mingling of unwholesome ingredients in them is an offense at common law, as well as by statute.1 The statutory provisions on this subject are numerous under the...

Section 312. Selling Adulterated Milk: The selling of milk to which water or other foreign substance has been added is an offense, and includes milk which has been skimmed and coloring matter added;3 and of course milk includes cream.4 And...

Section 313. Selling Oleomargarine, Butterine: The manufacture or sale of oleomargarine, butterine, lard compounds, and the like, may be prohibited absolutely, under the police power, although such articles may not be injurious to health when used...

Public Nuisance. Section 314. Definition And Elements: A common or public nuisance is the doing of some act or permitting something to exist, or omitting to do something one is in duty bound to do, which tends to the common injury, hindrance or annoyance....

Section 315. Annoyance To The Public: If the nuisance, whatever it is, annoys the community in general and not merely some one person, that is sufficient to constitute the offense.15 But where the nuisance tends to annoy or injure the co...

Section 316. Intention, Convenience Not Material: It matters not what the intention was in the doing of the forbidden act. Intent is not material to constitute the offense. If prejudicial results flow from the unlawful act that is sufficient.17 And t...

Medicine: Section 317. Statutory Provisions Regulating. There are statutes in the several states regulating the practice of medicine, pharmacy and dentistry, which forbid any person practicing in these profess...

Thirty-First Subject. Criminal Procedure. Chapter I. Arrest, Hearing And Bail. Section 1. First Step Of Procedure: The first step in the course of procedure in criminal causes is the apprehension of the person or persons charged with having committed a crime; and this is usually brought about by procuring a warran...

Section 2. Arrest For Misdemeanors: And the common law authorizes officers to make arrests in misdemeanor cases without a warrant, where there is danger of escape, or where the wrongful act cannot be stopped or redressed except by immed...

Section 3. Statutes Confirm The Common Law: Statutes relating to making arrests in criminal causes without first procuring a warrant, generally confirm the common law; for instance, the criminal code of Illinois contains the following provision...

Section 4. Breaking Doors And Killing: An officer in serving process of arrest may break open doors if necessary for the purpose of making an arrest in any criminal case, 11 and if the crime be a felony in fact committed, he may kill the f...

Section 5. Affidavit The Basis Of A Warrant: A magistrate has no authority to issue a warrant for the arrest of a person without an affidavit is first made by some person charging the accused with a crime, or that there is probable cause to susp...

Section 6. Resisting Unlawful Arrest: If an officer be resisted and killed by one whom he is attempting to arrest illegally and without color of authority, the killing will not be more than manslaughter unless there was previous or expres...

Section 7. Warrant Protects Officer, When: But where a warrant appears to be regular on its face it will protect the officer who makes an arrest with it, though issued on a void complaint conferring no jurisdiction on the court.20 15 Housh vs...

Section 8. Issuing Search Warrant: Before a search warrant can issue probable cause must be shoval supported by affidavit stating sufficient facts that shall justify the magistrate that suspicion is well founded. The mere expression of...

Section 9. Illegal Arrest No Defense: But an illegal arrest cannot be urged as a defense to an indictment. No matter how a person is brought before the court, it has jurisdiction to try him on the indictment.25 So also the legality of th...

Section 11. Hearing Before The Magistrate: If the arrest is made by virtue of a warrant first issued, then the prisoner shall be immediately taken before the magistrate who issued the process, or in the event of his absence or inability to act...

Section 12. Letting Prisoner To Bail, When: On the other hand, if it appears that an offense has been committed, and that there is probable cause to believe that the accused committed it, then, if the offense is bailable, the magistrate shall l...

Section 13. Examination No Bar To Another: The examination and discharge by one magistrate of one accused of a crime is not a bar to another examination before some other magistrate for the same offense upon proper complaint being made. Such e...

Section 14. Bail, When And When Not Allowed: Bail shall be allowed in all cases before conviction, if offered, except capital offenses where the proof is evident or the presumption is great.29 But in a murder case if the evidence introduced on ...

Section 15. Application For Bail: A person who stands indicted for murder in any degree is entitled as of right to a hearing on application to be admitted to bail;33 and such application may be either by motion in term time, or by hab...

Section 16. Bail Pending Writ Of Error: Bail will be allowed or denied by the court in which a cause is pending on a writ of error, in the discretion of the court, or according to the statute if the matter is regulated by statute. Any just...

Chapter II. Grand Jury Proceedings. Grand Jury. Section 17. Common Law Grand Jury: At common law a grand jury consists of not more than twenty-three persons and not less than twelve selected from the body of the county.1 Changes have been made in many of the states as to the number...

Section 18. Impaneling Grand Jury: The organizing of a grand jury consists in calling the jurors in a body before the court, when they are then examined by the court touching their qualifications to act in that capacity. If upon such e...

Section 19. Irregularities In Organizing: Mere irregularities in summoning and impaneling that body, not injurious to the rights of any one indicted, will not render its proceedings void. For instance if the jurors were summoned to appear as ...

Section 20. Grand Jury Organized, When: It is usually the practice to organize the grand jury at the opening of the term of court to which they are summoned to appear for service; but this may be done at any time during the term.7 In Illin...

Section 21. Foreman; Swearing Grand Jury: The panel having been thus filled the court shall appoint one of their number as foreman of that body. After which the grand jury shall be sworn upon their oaths in due form of law touching their duti...

Section 22. Form Of Oath Of Grand Jury: The substance of the oath of the grand jury is, that they shall diligently inquire into and true presentments make of all such matters and things as shall be given them in charge, or shall otherwise c...

Section 23. Court Charging Grand Jury: The grand jury having been thus duly impaneled and sworn, the court then charges them in a general way in reference to their duties and deliberations. And the court shall designate an officer to atten...

Section 24. Clerk Of Grand Jury, Duties: The clerk of the grand jury in taking the minutes of their proceedings simply notes down in brief form the full names of all persons accused, the names and addresses of all witnesses and persons injur...

Section 25. Foreman's Duties: The foreman of the grand jury is the presiding officer of that body; he is authorized to swear the witnesses who appear before them, and on the finding of an indictment shall indorse on the back of it...

Section 26. Examination Of Witnesses Before Grand Jury: The foreman or any of the jurors may examine the witnesses appearing before them, and if necessary they may ask the states' attorney to assist them in such examination; and it is the duty of the state...

Section 27. Strangers Not Allowed With Grand Jury: No one but the grand jurors themselves should be allowed in the presence of that body during their deliberations; for if a stranger or any unauthorized person is allowed to mingle with them and take p...

Section 29. Grand Jury Proceedings Secret: The grand jury are required to conduct their proceedings and deliberations secretly; they hear the evidence of witnesses on behalf of the prosecution only, for the reason that the finding of an indict...

Section 30. Presenting Matters To Grand Jury: Criminal matters presented for the consideration of the grand jury come from several sources, mainly from magistrates or justices by binding or committing accused persons; those matters to which the a...

Section 31. Courts Authorized To Empanel Grand Juries: Trial courts of general and limited jurisdiction, as well as courts of review, exist in the several states, all created on the same general plan, as provided by the constitutions and statutes of the r...

Section 32. Courts Authorized To Try Misdemeanors: In each county there is a county court with limited jurisdiction in both civil and criminal matters. The county courts are authorized to try criminal cases upon information, of the grade of misdemeano...

Section 33. Jurisdiction, What Constitutes: Jurisdiction is the power to hear and determine a cause.24 Courts can take jurisdiction only as authorized by the constitution and statutes, not even by the consent of the parties where the law does n...

Section 34. State And Federal Courts, Concurrent Jurisdiction: There are some criminal offenses the state courts may take jurisdiction of in the exercise of the general police power though punishable under the laws of the federal government, such, for instance, a...

Section 35. Offense Commenced In One State: A criminal offense may be commenced in one state but completed in another. For instance, a fatal stroke may be given or poison administered in one state and death ensue in another; in such state of th...

Chapter III. Indictments And Informations. Indictments. Section 36. What Is An Indictment: The nature, object, and validity of an indictment is the next subject of inquiry. An indictment is a written accusation presented by a grand jury under oath charging one or more persons with a crimin...

Section 37. Constitutional Requirements: In all criminal prosecutions, whether the charge is presented by indictment of a grand jury or otherwise, the accused is entitled to know the nature and cause of the accusation and to have a copy ther...

Section 38. In Language Of The Statute Sufficient: As a general rule, the statement of the offense in the indictment in the terms and language of the statute defining it, or so plainly that the nature of the offense may be easily understood, is suffic...

Section 39. Statutory Words Insufficient: Therefore, in an indictment on a statute - when the language of the statute does not describe it - the pleader is required to set out the acts or facts specifically to apprise the accused of the offen...

Section 40. Only One Felony In An Indictment: Only one felony can be charged in an indictment. In other words, separate and distinct felonies can not be joined in the same indictment.19 But the same felony may be charged in different ways in diff...

Section 41. Several Felonies In One Transaction: But to this rule there is an exception. Two or more felonies may be joined in different counts in the same indictment where they constitute or grow out of the same transaction. Thus, burglary and gran...

Section 42. Distinct Misdemeanors May Be Joined: Several separate and distinct offenses may be joined in the same indictment in different counts where they are all misdemeanors of like kind or character against the same person, such, for instance, a...

Section 43. Name Of The Accused Or Others: The accused should be indicted by his full name, John Smith instead of initials J. Smith; but he may be indicted under any other name by which he is well known. If the accused is quite as well known b...

Section 44. Place Where Offense Committed: The pleader, in drawing an indictment, must state the place where it is said the crime was committed; but alleging that it was committed in the county, in and for which the grand jury is sitting, and ...

Section 45. When Was The Crime Committed?: The indictment must state that the offense was committed on some particular day within the statute of limitations, although the precise day is not material; any day within the statute of limitations i...

Section 46. Time And Place Must Be Repeated: In drawing an indictment the pleader must not only state the time and place of the offense at the beginning of the body of the count, but must repeat the same immediately in connection with every succ...

Section 47. Ownership Of Property Involved: In all cases where property is involved in a criminal cause, such as larceny and the like, the name of the owner or owners must be averred in the indictment; if owned by several persons composing a pr...

Section 48. Description Of The Offense - Surplusage: The pleader should not use any unnecessary words in stating the offense; but if he does do so that will not necessarily vitiate the indictment. Any words used in describing the offense which are not p...

Section 49. Description Of Property, Money: In describing property in an indictment, a detail description as to color, kind, quality and the like is not required; but if such description is given it cannot be treated as surplusage. The descript...

Section 50. Exceptions In Statute To Be Negatived: A statute defining a crime may contain an exception. This exception must sometimes be noticed in describing the offense in an indictment. If the exception is embodied in the same clause which defines ...

Section 51. Summarizing Clause: The old common law form of precedents of indictments requires a formal clause summing up the offense, substantially as follows: And so the grand jurors aforesaid, upon their oaths, aforesaid, do say,...

Section 52. Verbal Inaccuracies, Ambiguities: Verbal inaccuracies or wrong spelling of words which do not affect the sense are not material. And even where the sense or word seems ambiguous, this will not render the indictment bad if it is suffic...

Section 53. Criminal Intent, Knowledge: Intent is generally an element of a criminal offense and must be averred in the indictment; this is usually done by using the words of the statutory or common law definition indicating the intent. For...

Section 54. Amendments Not Allowed: Imperfections of indictments cannot be cured by amendment either at common law or by statute. Blackstone says: None of the statutes of jeofails for amendments of error extend to indictments or proceed...

Section 55. Amendments Allowed, When: By the common law imperfections in informations and complaints may be cured by amendment, on application to the court; this practice is permitted for the reason that the presentment is by one person o...

Section 56. Motion To Quash Or Demur: Although the defendant may plead to and go to trial on a defective indictment or information if he chooses, yet he is not bound to do so. He may, before pleading, enter his motion to quash the indict-...

Section 57. How And When Make Motion To Quash: In the absence of a statute on the subject, a motion to quash an indictment or information may be made orally or in writing; but the better practice is to reduce it to writing. And this motion should ...

Section 58. Grounds For Quashing Indictment: In presenting a motion to quash, the usual reasons are because of the imperfections of the indictment in either form or substance. If an indictment is so defective that it fails to charge an offense, ...

Section 59. Prosecutions By Information And Complaint: Criminal causes may be commenced by information as well as by indictment. This form of criminal pleading differs from an indictment in that the information is presented to the court by one person only...

Section 60. Must Be Supported By Affidavit: Informations and complaints of a criminal nature must be made under oath; that is, they must be supported by affidavit of some competent person who knows the truth of the charge.85 An affidavit ...

Chapter IV. Change Of Venue; Continuance. Change Of Venue. Section 61. Prejudice Of The Judge: A criminal cause may, upon proper application, be transferred from one judge to another because of the prejudice of the judge before whom it is pending; or it may be transferred from one county to ano...

Section 62. Prejudice Of The Inhabitants: When the cause for the change of venue is the prejudice of the inhabitants of the county, against the defendant, his application may be opposed by counter affidavits; and the court will then grant or ...

Continuance. Section 63. Continuance For Preparation For Trial: A reasonable length of time and full opportunity shall be given the defendant after indictment to prepare for trial, and if he has not sufficient time he should enter a motion for a continuance.10 If ...

Section 64. Refusing Time To Prepare Affidavit: On making a motion for a continuance, counsel is entitled to sufficient time to prepare an affidavit in support of the motion; and a refusal in this respect is in effect a refusal to entertain the mot...

Section 65. Counsel Abandoning The Case: So where counsel suddenly abandons the defendant's case the day before the trial, to the surprise of the defendant, and the defendant promptly causes subpoenas to issue and makes an effort to have his...

Section 66. Absence Of Material Witnesses: The absence of material witnesses is sometimes good ground for a continuance. In his affidavit in support of the motion the defendant must state the name and residence of the witness; the facts he exp...

Section 67. Absence Of Non-Resident Witnesses: If the absent witness does not reside in the state, then the affidavit must show that the witness has promised to attend and give his testimony in the event of a continuance.18 It is sufficient if th...

Arraignment. Section 68. Defendant's Plea Essential: The arraignment and plea of the defendant is the first step in the progress of the trial of a criminal cause for the purpose of the forming of an issue.22 For if the defendant does not plead to the i...

Section 69. What Is An Arraignment?: To arraign is nothing else but to call the prisoner to the bar of the court to answer the matter charged against him in the indictment.25 The old common law formality was to read the indictment to th...

Section 70. Effect Of Pleading Guilty: By a plea of guilty the defendant confesses the indictment to be wholly true as charged.29 But by pleading guilty the defendant does not admit that the facts stated in the indictment amount to an off...

Section 71. Record Failing To Show Plea: A court of review will presume that the defendant was properly arraigned and entered his plea in case the record is silent in that respect, unless there is something to show affirmatively that he did ...

Section 72. Assigning Counsel For Defendant: Every person charged with the commission of a criminal offense shall be allowed counsel, and if he is unable to employ an attorney the court shall assign vs. Shipley, 4 Mont., 468. Contra: Davis vs. S...

Section 73. Motion For A Separate Trial: The next step in the course of the progress of a criminal cause after the arraignment is the selection of a jury, if the parties are present and ready to proceed with the trial. It sometimes occurs w...

Chapter V. Selecting The Jury. Section 74. Constitutional Provision Relating To Trial By Jury: By constitutional provisions of the respective states of the union, as well as by the constitution of the national government, the accused, in all criminal prosecutions, shall have the right to a spee...

Section 76. Jury Cannot Be Waived, When: It has already been shown in a previous section that a jury cannot be waived in a felony case - not even by consent.4 1 U. S. Const., Amendment 6; Const, of Ill. Art. 2, Sec. 5. 2 Const, of Ill., Ar...

Section 77. Drawing Jurors, Challenge To The Array: There are statutory provisions for the drawing, summoning and filling of the panel of jurors, and any radical or material departure from the statutory mode tending to affect and prejudice the rights o...

Section 79. Sheriff Filling The Panel: Under a statute making it the duty of the sheriff to fill the panel from by-standers, he may select from persons accidentally in court, or he may go outside according to his discretion. And the court ...

Section 80. Challenge To Array Must Be Proved: Where a challenge to the array is made, the challenger must stand ready to prove his challenge by showing the illegality of the panel. This may be done by oral evidence or by affidavit. The latter is ...

Section 81. Qualifications And Disqualifications: The statutes and the common law state not only the required qualifications to render men competent as jurors, but also state certain disqualifications which make them incompetent. For the purpose of ...

Section 82. Challenges For Cause And Peremptory Challenges: Two kinds of challenges are allowed in selecting the jury, challenges for cause, and peremptory challenges. A challenge for cause is exercised when the examination of a juror discloses some disqualifi...

Section 83. Number Of Peremptory Challenges: By the very old common law, thirty-five peremptory challenges were allowed, but by statute of England the number was changed to twenty.18 The number of peremptory challenges is regulated by statute, ...

Section 84. Peremptory Challenges When Several Defendants: In some jurisdictions, the statutes as construed by the courts require the several defendants to join in their peremptory challenges; that is, one set of per-emptories for all;20 while in others each ...

Section 85. Exercising The Right To Peremptory: The right to excuse a juror by peremptory challenge continues until he is sworn, even though previously accepted by the party;22 but after a juror has been sworn to try the cause, such challenge is no...

Section 86. Errors Waived In Selecting Jury, When: The court of review will not entertain assignment of errors on the rulings of the trial court in the selection of a jury if the accused did not exhaust the num- 19 Ill. Stat., Chap. 38, Div. 13, Sec. ...

Section 87. Common Law Disqualifications: The usual common law disqualifications of jurors which authorize a challenge for cause may be summed up as follows: consanguinity of the juror with either of the parties within the ninth degree; that ...

Section 88. The Expression Of Opinion Disqualifies: If a juror on his examination says that he has expressed an opinion on the guilt of the accused, he is absolutely disqualified, and a challenge for cause should be allowed.28 But if the opinion the ju...

Section 90. Conditional Opinion Does Not Disqualify: But where the examination of a juror shows that he has not formed a fixed or positive opinion, or one merely hypothetical from rumor or newspaper statements, and declares that he can try the case fair...

Section 91. Positive Opinion From Reading Newspapers: A juror having stated that he had read the newspaper statements about the case, and that he believed the statements, and that one of the persons mentioned in the newspaper may have been the defendant,...

Section 92. The Court Cannot Reject Incompetent Juror: The defendant may waive his constitutional right to a fair and impartial jury, and accept a juror who is prejudiced or has expressed an opinion, if he desires, and the court cannot, on its own motion,...

Section 93. Separation Of The Jury: In capital cases, the jury, after having been sworn, shall be kept together in charge of a sworn officer, during all the adjournments of the court, unless otherwise ordered by the court with the conse...

Section 94. Sworn Officer Attending The Jury: The law requires that when the jury retire to consider of their verdict, they shall be attended by a sworn officer. This requirement is mandatory; and the failure to swear the officer who attended the...

Section 95. Opening Statements Of Counsel: The jury having been sworn to try the issues, the next step is the making of opening statements by 43 Hughes' Cr. Law, Sec. 2970; Jumpertz vs. People, 21 Ill., 411. 44 Flanagan vs. People, 214 Ill., ...

Chapter VI. Criminal Evidence. Section 96. Criminal Evidence Defined: Criminal evidence is any matter of fact or thing which proves or tends to prove the guilt or innocence of one charged with a criminal offense. The evidence may be parole or documentary; and it is eit...

Section 97. Direct And Circumstantial Evidence: Direct evidence is any competent matter of fact or thing usually given by eye-witnesses; that is, persons who saw what was done or heard what was said by the persons concerned in the transaction in qu...

Section 98. The Best Evidence Must Be Produced: In most respects the general rules of evidence are the same in civil and criminal causes. One of the general rules is, the best evidence must be produced or its absence accounted for before secondary ...

Section 99. Two Propositions Involved In Every Case: In every criminal cause there are two leading, distinct propositions involved; namely, that a crime was actually committed, and that it was committed by the defendant and none other; in other words, t...

Section 100. Circumstantial Evidence Alone: Circumstantial evidence alone is sufficient to warrant a conviction, however heinous the crime may be, provided it convinces the jury of the guilt of the accused beyond a reasonable doubt.11 In a cas...

Section 101. Weight; Beyond A Reasonable Doubt: The evidence must establish the guilt of the defendant beyond every reasonable doubt before a conviction can be had. A mere preponderance is not sufficient, however strong the preponderance may be, un...

Section 102. Burden Of Proof On Defendant, When: The burden is always on the prosecution to prove the guilt of the accused beyond a reasonable doubt before a conviction can be had.20 But when the defendant sets up an affirmative defense, such as al...

Section 103. Competency Or Incompetency Of Confessions: Admissions or confessions of the accused freely and voluntarily made may be sufficient to warrant a conviction, if the other evidence in the case clearly 18 Carlton vs. People, 150 Ill.,181; State vs...

Section 104. Declarations Of The Accused And Others: While a transaction is actually in progress the declarations or statements of any or all persons present are competent as part of the res gestae. For example, at the time of a robbery the defendants r...

Section 105. Defendant's Silence And Flight: An admission or confession may be inferred from the conduct of the accused remaining silent when charged with a crime, or when statements are made by third persons in his presence affecting him, when ...

Section 106. The Good Character Of The Defendant: Evidence of the good character of the accused is always admissible, no matter how conclusive the evidence may appear to be against him.39 The defendant can prove his good character, however, only by ...

Section 107. Character Of The Deceased: Where the defendant has introduced evidence tending to show self-defense in a homicide case, he may then show the general bad character of the deceased as that of a dangerous man; but the evidence mus...

Section 107a. Evidence Of Other Distinct Offenses: As a general rule evidence of other independent, distinct offenses than the one alleged in the indictment is incompetent and prejudicial.49 Before evidence of another offense is competent it must in ...

Section 108. Opinions Of Experts And Non-Experts: Evidence amounting to opinions when permissible is generally confined to the testimony of expert witnesses, such as the opinions of medical experts, and others where peculiar skill is required.51 Whe...

Section 109. Variance Between The Proof And Allegations: The general rule is that the evidence must correspond with the averments in the indictment, especially descriptive averments, otherwise there would be a fatal variance;55 and this includes names of pe...

Section 110. Competency Of Defendant As A Witness: Under constitutional provisions of the several states as well as the federal government, no person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy ...

Section 111. Incompetency Of Husband And Wife: Neither the husband nor the wife is a competent witness to testify for or against the other in any criminal cause, in the absence of a statute rendering them competent. By the common law they are but ...

Section 112. The Credibility Of Witnesses: Witnesses are truthful and trustworthy, fair and unbiased; or they are not; they are reasonable and consistent in their statements or the contrary; their opportunities for seeing and knowing the matte...

Section 113. Impeachment Of A Witness: The object of impeaching a witness is to discredit him, and destroy, if possible, the force and effect of his testimony. This may be done by showing his general reputation for truth and veracity to be...

Section 114. The Order Of Introduction Of Evidence: The evidence is introduced on the trial by the examination and cross-examination of the witnesses, commencing with those of the prosecution; after which those for the defense follow. 72 McCarty vs. P...

Section 115. Leading Questions And Cross-Ex- Amination: It is improper for a party to examine his own witness by leading questions - such as suggest the answer desired.76 But there are exceptions to this rule; one may ask leading questions and even cross-e...

Chapter VII. Legal Defenses. Section 116. Once In Jeopardy A Defense: The defendant in a criminal cause has a right to set up any legal defense which his evidence tends to establish. Among the defenses is that of once in jeopardy, which occasionally arises. The constitu...

Section 117. Alibi, Defendant Not Present: If the accused was not present at the time and place of the commission of a crime, but was so far away as to render it impossible for him to have committed it, and if he in no manner aided, abetted, a...

Section 118. Insanity As A Defense: If, at the time of the alleged offense, it can be shown that the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of his act, or if he ...

Section 119. Taking One's Own Is Not Larceny: One charged with larceny may show in defense that the property taken by him was his own, and that it was unlawfully withheld from his possession; or that he, in good faith, believed the property was h...

Section 120. Another Committed The Offense: The accused may show as a defense, that another person committed the offense charged, and that he himself took no part in it, either directly or indirectly.13 And if it be uncertain whether the accuse...

Section 121. Intoxication As An Excuse For Crime: While it is true, generally speaking, that intoxication is no excuse for the commission of an offense, yet, where a particular, specific, or deliberate intent, such as malice aforethought, in murder, ...

Section 122. Essential Element Lacking: If the act or transaction which is claimed to be an offense is lacking in any one material essential element necessary to constitute a crime, then there is no offense, and the failure in this respect ...

Section 123. Statute Repealed; Statute Invalid: A conviction cannot be had after the repeal of a statute on which an indictment is based, unless the repealing act contains a provision for that purpose.19 The power to render judgment in a criminal c...

Section 124. Statute Of Limitations A Defense: If an indictment was not procured, or information filed within the statute of limitation, a criminal prosecution will be barred, and this is a legal defense. The statute of limitation begins to run w...

Chapter VIII. Verdict Of The Jury. Section 125. Arguments And Instructions: The introduction of the evidence is followed by the arguments of counsel, after which the court charges the jury in the form of instructions. The object of instructions is to inform the jury what are ...

Section 126. Jury Retire To Deliberate On Verdct: The jury having been thus instructed, retire to the jury room in charge of a sworn officer, where they must be kept together deliberating until they reach their verdict, or until discharged by the cou...

Section 127. Form Of Verdict, General Or Special: By the common law there are two forms of verdict, general and special; the general form is either guilty or not guilty;4 and the special is one in which the jury set out the facts which they find the ...

Section 128. Verdict On An Included Offense: If a lesser offense be included in the greater by the pleadings, a conviction may be had of the lesser;10 and a verdict of guilty of the lesser or lower degree is equivalent to a verdict of not guilty...

Section 129. Verdict When Several Misdemeanors: If the indictment contains several separate and distinct misdemeanors, in separate and distinct counts, as it may if they are of like kind, the jury must find of which count or counts they find the de...

Section 130. Correcting Defects In The Verdict: Any defects in the form of the verdict should be corrected before the jury are discharged;16 and this may be done by the court in the presence and with the assent of the jury.17 16 Hopkins vs. State ...

Chapter IX. Motion For New Trial. Section 131. Motion For A New Trial: In the event of a verdict of guilty, the defendant may enter his motion for a new trial, either orally or in writing, according to the statutes regulating the practice. In some states the motion must ...

Section 132. Motion In Arrest Of Judgment: Immediately upon the overruling of the motion for a new trail, an exception should be promptly taken. And thereupon a motion in arrest of judgment should be entered before sentence and judgment on the...

Chapter X. Bill Of Exceptions. Section 133. Objections And Exceptions Essential: Objection to incompetent evidence should be made promptly at the time it is offered, and the ground of objection should be stated; and if the court overrules the objection, an exception to the ruling ...

Section 134. Bill Of Exceptions Essential, When: And finally, if the defendant desires to prosecute a writ of error, for review, the proceedings of the trial court, including the evidence, the rulings of the court on objections and motions, the givi...

Section 135. Bill Of Exceptions, When Not Necessary: But of course, the matters and things which constitute the record proper need not be embraced in the bill of exceptions.5 The indictment, for instance, being a part of the record proper, is not requir...

Thirty-Second Subject. Wills. Chapter I. History Of Wills. Section 1. Definition: A great deal of difficulty has been experienced in finding a definition of a will which is both clear and accurate. Among the leading recent definitions are the following: A will is an instrument by...

Section 2. History Of Wills: During the Anglo-Saxon period of English history, it was possible to dispose not only of personal property, but also of real property held as boc-land. After the Norman Conquest the right of disposing...

Chapter II. Classification And Forms Of Wills. Section 3. In General: Wills may be classified either as to the form of the will, or as to the class of property transferred thereby. Under the first system of classification wills are either written, including holographic ...

Section 4. Written And Unwritten Wills: By the Statute of Frauds all wills affecting real property were required to be in writing, but the provisions of this statute did not apply to wills affecting personal property only.1 At the present ...

Section 5. Holographic Wills: An holographic will is one entirely written by the testator himself. In many states by statute such wills are valid, even if lacking the formalities required in the case of an ordinary will. The provi...

Section 6. Conditional And Alternative Wills: A conditional or contingent will is one which is drawn up to become operative upon the happening or not happening of some event. The law does not favor conditional wills, and the intention of the test...

Chapter III. Parties. Section 7. Who May Be A Testator: The general rule is that any person of legal age and sound mind, who is not under some special legal disability, may make a will. There is no difference between the capacity required to make a will of...

Section 8. Who May Not Be A Testator: The first and most important class who are excluded from the right of disposing of their property by will are persons who lack the necessary mental capacity, whether they are idiots or lunatics. A les...

Section 9. To Whom Property May Be Left By Will: Any person may take under a will either as legatee or devisee,9 in the absence of statutory provisions to the contrary.10 In this country restrictions upon the capacity to take under a will when any r...

Section 10. Will Made In Pursuance Of A Contract.: Wills are generally revocable because of the nature of a gift; But a will may be irrevocable if founded upon a valuable consideration 7 See statutes of the several states. 8 See subject of Conflict o...

Chapter IV. Making A Will. Section 11. Essentials Of A Will: The essentials for a valid writing under the laws of the majority of the States are as follows: (1) The will must be reduced to writing; (2) It must be signed by the testator; (3) It must be acknow...

Section 12. The Writing: The statute of frauds required a will of real estate to be in writing, and under statutes of the various states a will affecting personal property must now also be in writing. This subject has already...

Section 13. Signing: It was not necessary that a will be signed in England until the year 1837. The signing of the will by the testator is now required in all the states of this country. A will may be signed either by th...

Section 14. Witnesses And Acknowledgment Of Signature: Witnesses to wills are required under the laws of all the states; the number of necessary witnesses varies, three being required in some states, and only two in others.7 In the absence of a statutory...

Section 16. Publication: The publication of a will is the declaration of the testator before the witnesses, that the instrument is his last will and testament. Publication is required by statute in some states. 12 Hight vs. ...

Chapter V. Revocation And Republication Of Wills. Section 17. Revocation: A revocation of a will is an act by which the will ceases to have any efficacy.1 The same degree of mental capacity is required to enable a person to revoke a will as to enable him to make one.2 With ...

Section 19. Effect Of Alterations And Interlineations: If alterations or interlineations are made prior to the execution, they become an integral part of the will,12 although such alterations, if not in the testator's handwriting, may give ground for susp...

Section 20. Republication: At common law a will which had been revoked could be revived or republished, by an informal written instrument, or even by parol evidence showing the testator's intent to revive the will;16 except in ...

Section 21. Codicils: A codicil is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as a part of, a will, by which its dispositions are explained, added to, or altered.19 A codi...

Chapter VI. Probate Of Wills. Section 22. In General: The probate of a will is the proof before the proper court or officer that the instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act ...

Section 23. Defenses Against Probate: Any person interested may appear and defend against the probating of a will. The principal defenses which may be made (outside of those relating to the formal execution of the instrument) are mistake,...

Chapter VII. Construction Of Wills. Section 24. Definition: The will of a competent testator, and every part thereof, presumably expresses an intelligible intent, i. e. means something. When the language, in view of all the circumstances, can have but one mea...

Section 25. Construction Of Provisions Relative To Real Estate: The most of the peculiarities of the rules of construction of wills are to be found in the provisions relating to real property. Many forms of estates not permissible by deed, may be created by will; ...

Thirty-Third Subject. Executors And Administrators. Chapter I. Probate Or Surrogate Practice. Administration. Section 1. In General: By Julian C. Ryer, Ll. B. Professor Of The Law Of Wills, And Probate Practice At The Illinois College Of Law. Author Of Elements Of Commercial Law. Member Of The Chicago Bar. An executor is the per...

Section 2. Administration: The performance by the executor or the administrator, as the case may be, of his duties, constitutes what is termed the administration of the estate. Such duties include the collection of all the pr...

Section 3. Appointment Of Executor: It is the duty of the executor to present the will, upon the death of the testator, to the proper court for probate.3 Under the more modern statutes, however, any person interested in the probating of...

Section 4. Death Necessary: Before letters of administration or letters testamentary can issue, the person upon whose estate the administration is sought, must be dead. Any attempt at administration upon the estate of a living p...

Section 5. Jurisdiction; Domicile: The domicile of the decedent at the time of his death usually determines and fixes the jurisdiction in which the probating of his will shall take place or letters of administration issue. The county i...

Section 6. The Source Of Authority Of Executor's Appointment: The testator's will is the source of all of the authority that is conferred upon the executor. From the will the executor gets all his rights and powers. The statutes limit in many cases these rights ...

Section 8. Capacity To Act As Executor: The general rule is that all persons who are capable of making wills for themselves are competent to act as executors.18 Lunatics, idiots, and other persons non compos mentis, are incapable of acting ...

Section 9. Executor May Refuse To Serve: Although a person may have given his promise to the testator to act in due time as the executor of the will, such person cannot be compelled to accept the executorship. The executor may refuse or acce...

Section 10. Administrator Can Carry Out Terms Of Will: The appointment of an administrator to carry out the terms of a will frequently happens where the executor named therein fails to qualify or for some other reason becomes incompetent and unable to act...

Section 11. Appointment Of Administrators: Upon the death of any person who has left property of any kind, the administrator, however, can collect the assets of the estate and distribute only the personal property according to the laws of dist...

Section 12. Administration By Next Of Kin: Those who can then claim the right to administer, after the question of the surviving husband or widow's contention is disposed of, are the next of kin. It is usually the custom, and the general rule ...

Section 13. Stranger; Public Administrator: In some jurisdictions a stranger who is a proper person and willing to accept may, where a husband, widow, next of kin or creditor is unwilling to serve, be appointed. There are, however, in many juri...

Section 14. Administrator Cum Testamento Annexo: The court will not appoint an administrator cum testamento annexo at once. The executor named therein should be given every opportunity to qualify or to renounce his trust. The persons entitled to an ...

Section 15. Administrator De Bonis Non: There is another class of administrators who qualify in case the office of executor or administrator becomes vacant before the estate has been finally settled and closed. Such an administrator is call...

Section 16. Special Or Temporary Administrator: There are special or temporary administrators appointed, according to the circumstances of the case, and the need therefor. In the case of an infant named as executor in a will, an administrator is ap...

Section 17. Jurisdiction: The County Courts are the ones in which the administration of decedents' estates may be accomplished. The court usually employed in the performance of these duties is the County Court, although there ...

Section 18. Appointment Is A Judicial Act: The appointment of an administrator or an executor is a judicial act and must be performed by the court itself. It is never proper for the clerk of the court to make the appointment, inasmuch as the c...

Section 19. Revocation; Removals: It is usually true that the court granting letters testamentary or of administration has the power after having granted the letters to revoke them.39 This is accomplished by means of a petition or app...

Section 20. Bond Of Executor: Unless a provision appears in the will, it is necessary under the statutes of the respective states for the executor to give a bond for the faithful performance of his duties. The bond must have good ...

Section 21. Executor As Trustee: An executor may be a trustee under the will, and as such is required to give a bond unless released from that obligation by the testator. The resignation of the executorship does not require the execu...

Section 22. Release Of Surety. Petition: Upon application of the surety who has signed the bond of an administrator or executor, he may be released from liability by filing a petition in court, giving notice to the executor or administrator,...

Section 23. Joint Bonds. Breach: If there are two or more persons appointed executor or administrator of the same estate, such parties must give joint or separate bonds, in the discretion of the court. Suit may be brought upon the bo...

Section 24. Diligence Required: The administrator, when acting for the estate, must use proper diligence. If he acts with ordinary-care in the discharge of his duties, neither he nor his sureties are held answerable for losses which...

Section 25. Failure To Pay. Demand: If an administrator or executor fails or refuses to pay over moneys or dividends to the party entitled thereto upon the proper order of the court within a reasonable time fixed by the statute, such re...

Section 26. Suit: Liability: Suit may be maintained against all or a portion of the obligors upon the bond. This is within the option of the plaintiff. The liability of a surety extends only to the amount of his assets as properl...

Section 27. Liability After Revocation Of Letters: Where an administrator or executor has had his letters revoked, he is still liable on his bond to his successor, or to any other person who may have been injured, for any mismanagement of the estate c...

Section 28. Security For Costs: It is customary in all actions upon bonds brought for the use of any person against the executors, administrators, guardians, and their sureties, where the person for whose use the action is brought i...

Section 29. Release Of Bond Does Not Release Past Liabilities: The omission of the names of the sureties from the body of the bond will not release the sureties from liability.55 The revocation of letters upon order of court releases the sureties only from future...

Section 30. Sureties' Right To Appeal: The sureties, upon a bond of the administrator or executor, have a right to appeal from any order of the court which may ultimately affect their liability in the same manner that the principal might d...

Section 31. Statute Of Limitations: Actions made upon the bond of executors and administrators are barred upon the running of the statute of limitations, which usually begins to run after the period in which the executor or administrato...

Section 32. Surety Estopped To Deny Appointment: The surety having signed the bond of an executor or administrator, wherein it is recited that the executor or administrator has been duly appointed, is estopped from denying the appointment to, or the...

Chapter II. Obligations Of Administration. Section 33. The Duties Of Administrator Or Executor: The duties of an administrator or executor are fixed by statute. The requests and wishes of the interested parties must necessarily have no effect upon the strict line of the executor's duty. He canno...

Section 34. Duty Of Executor To Present Will For Probate: It is the duty of any person knowing that he has been named as executor of the will of a deceased person to preent the same to the court with the proofs thereof for probate. It is customary to do so w...

Section 35. Rights Of Executor Before Qualifying: During the time which intervenes between the death of the testator and the appointment of the executor, the executor is usually granted by the statute such powers which extend to the burial of the dec...

Section 36. Survivor May Qualify: Where two or more executors are named in the same will, and one or more of them die or refuse to act, the letters may be granted to the other person or persons living and not disqualified to act.4 (a)...

Section 37. Powers Over Real Estate: Unless otherwise provided by local statute, the executor of a will'and the administrator of an intestate estate, have no power over the real estate of the decedent. There is an exception, however, whi...

Section 38. Inventory: The first duty of the administrator after receiving his appointment is to make out a full and complete inventory of all property, real, personal and mixed, which shall come into his hands, possession ...

Section 39. Appraisement: Every article of property of the deceased should be inventoried by the administrator or executor so that the court may be fully advised as to the exact extent of the property without regard to the val...

Section 40. Money Not To Be Loaned: Money belonging to the estate and in the hands of the administrator should not be loaned.9 He has no power to buy any interest or share of the estate.10 8 Diversey vs. Johnson, 93 111., 547. 9 Wadsw...

Section 41. Interest: The administrator is not chargeable with interest upon moneys in his hands, unless the final settlement has been unnecessarily delayed.11 The administrator, however, must account for all moneys or pro...

Section 42. Powers Of Executor To Compromise Debts: The executor or administrator may take real estate in payment of a debt due the deceased.13 He is allowed to perform all contracts made by the deceased when recommended or directed by the court. Provi...

Chapter III. Actions By And Against Administrators. Section 43. Suits Must Be Brought By All Executors: If there are more than one executor or administrator, such executors and administrators must be sued jointly to procure a valid judgment. A judgment cannot be rendered against one of them. Such a proc...

Section 44. The Payment Of Debts Out Of The Property Of The Deceased: The letters of administration having been issued, and steps taken to collect the assets of the estate, the foremost duty of the administrator is to satisfy the claims left unpaid by the deceased at th...

Section 45. Liability Of Real Estate For Satisfaction Of Debts: While it is a general rule that the personal estate of a decedent is liable for the payment of his debts, it is modified in case the personalty proves insufficient to satisfy the claims. After the exe...

Section 46. Parties: It is customary and necessary to make the widow, heirs and all persons in possession or claiming an interest in the lands, parties to the proceeding.7 A decree cannot be rendered until all the parties...

Section 47. The Decree: The decree entered in the cause should show all the proper steps and statutory requirements of the proceedings. It is essential that the record affirmatively shows the grounds upon which the proceedin...

Section 48. Practice: The application is docketed as other causes. The petition may be heard, or continued, in like manner as in cases in chancery. The court is authorized to fix the terms and conditions of the sale and ma...

Section 49. Homestead And Dower: Upon an application being made to the court to procure the sale of real estate for the payment of debts of a deceased person, if it appear that there is a dower or a homestead in the land sought to be...

Section 50. Costs - Attorney's Fees: Real estate cannot be sold, even though there is deficiency, where such deficiency consists only of the costs or attorney's fees. ...

Section 51. The Decree As Final: Report by administrator. Decree is final unless reversed or changed by appeal or direct proceedings. (a) The statute usually regulates the manner of the payment by the purchaser of the purchase price...

Section 52. Reversal Of Decree Upon Appeal: If the court, reviewing these proceedings, directs a reversal, it in no way affects the title of third persons, so long as the acts performed were by a court which had jurisdiction of parties and the ...

Section 53. Conveyances: The administrator, being authorized by the decree of court to sell the lands, must make the conveyances; he cannot grant the power of attorney to execute the deed for him.16 (b) The conveyance should...

Chapter IV. Probating Of Wills. Section 54. Production Of Will: Statutes have been passed in the several states requiring that the persons in whose custody a will and testament is left shall, upon learning or being advised of the death of the maker of the will, de...

Section 55. Application In Probate: Before a will is admitted to probate the person desiring the same to be probated will file a petition in the proper court of the county, asking that the will be admitted to probate. The petition sets ...

Section 56. Appeals From The Order Of Probate: An appeal will lie from an order admitting a will to probate, which right of appeal and the court to which it shall be carried is determined by statute in the respective states. ...

Section 57. Wills Must Remain In Clerk's Office: Wills having been filed with the clerk are not permitted again to leave the office of the clerk. Certified copies when the original is necessary for evidence are used. ...

Section 58. Letters To Issue: Upon the probating of the wills, letters testamentary are issued to the executor, ready, able, and willing to qualify. ...

Section 59. Contest In Chancery: After any will (and by the use of the word will, is also meant will, testament or codicil) is admitted to probate, any person interested may file his bill in chancery, or a petition in the proper cour...

Section 60. Petition To Contest: The petition or bill should set forth clearly and distinctly the grounds relied upon by the contestant to substantiate his charge that the will is not a valid will; he need not plead evidence, but the...

Section 61. Wills Proved In Foreign States: Wills that have been proved according to the laws of any of the states or territories, or of a country beyond the limit of the United States, which concern property or estates within this State, may b...

Section 62. Lost Wills: Upon the death of a testator leaving in existence an unrevoked will which cannot be found, the contents of the will may be proved like other lost documents, and if sufficient, the will shall be admitt...

Chapter V. Foreign Administration; Appeals. Section 63. Foreign Executors And Administrators: Administration granted in one county or State, under the common law, does not confer any title to the property of the intestate not within the jurisdiction of the court by whom he is appointed. The pr...

Section 64. Right To Sue: Statutes have been passed whereby one who is the administrator or executor of the decedent's estate shall be permitted to maintain suits to enforce claims due the estate, or to dispose of property in ...

Section 65. Appeals: Where claims have been presented to their proper court and refused or allowed, either party may take an appeal from the decision rendered, to the court of general jurisdiction of the county in which t...

Chapter VI. Administration Of Deceased Partner's Estate. Section 66. Death Terminates Partnership: The law that the death of one partner in a partnership dissolves and terminates such partnership is elementary.1 Thereupon it becomes necessary so far as the surviving partners are concerned to organi...

Section 67. Carrying On Business By Executor: Before an executor shall be permitted to carry on the partnership business or remain in the partnership business he should have clear and positive directions from the will. In the absence of this prov...

Section 68. Limited Partnership: In the case of the death of one partner under a limited partnership agreement his interests pass immediately to his representative subject to his liabilities and conditions of the statutes of the seve...

Section 69. Continuation Of Firm To Adjust Accounts: The death of one partner having dissolved the partnership, and the survivor having by law succeeded to all legal rights of the firm, there remains a mutual interest belonging as well to the representa...

Section 70. Partnership Assets: The surviving partner has the right to continue in possession of the property of the firm, liquidating its liabilities and adjusting its business. It is his duty, however, to proceed to this end witho...

Section 71. No Compensation To Surviving Partners: The surviving partner of a partnership has no right to demand compensation for his services in settling the affairs of the partnership, unless provision is made therefor in the articles of co-partners...

Chapter VII. Awards. Section 72. Widow's Award: The widow of a deceased husband whose estate is administered, whether the husband died intestate or not, shall be in all cases, without regard to the debts or claims against the estate, except funeral...

Section 73. Children's Award: Where there is no widow surviving but there are children of the decedent surviving him at the time of his death, who are under age, the children are allowed such an amount of property as would have be...

Section 74. Award Is For Children's Benefit: Widow's allowance is as much for the benefit of the children as for the wife, and where there are children residing with the widow she has no power to deprive them of this means of support so long as ...

Chapter VIII. Debts Due From The Estate. Section 75. Claims Against Estates: It is necessary to provide that a creditor of a deceased person shall have a remedy by which his claim may be enforced. The statutes of the several states, therefore, provide a way to accomplish this ...

Section 76. Claims: Demands to be chargeable against the decedent should be based upon some express or implied contractual relation obligatory upon him during his lifetime. 1 Smith vs. Goodrich, 167 Ill., 46. Judgments...

Section 77. Partnership Debts: Partnership debts after the partnership assets have been exhausted in part payment of the account may be paid out of any excess which shall remain in the hands of the executor or administrator after t...

Section 78. Funeral Expenses May Be Paid By The Executor: Inasmuch as it is the duty of the executor of the will to see that the deceased person is properly interred, the necessary expenses attending that duty shall be a charge against the estate of the dece...

Section 79. Presentation Of Claims: The statute providing for the filing of claims usually fixes a period of time within which the claims must be presented. The law declares that it is the duty of the executor, or administrator, to sett...

Section 80. Proof Of The Claims, Hearing: The claims having been filed, it is then the duty of the court to hear the claim upon a regular trial. The same proceeds are had to determine the justness of the claim upon the trial of the cause, and...

Section 81. Unmatured Claims: It is not necessary that the claim sought to be found in favor of the creditor and against the estate of the deceased shall be due and payable. It is sufficient if the claim is just and true, and then...

Section 82. Defenses To Be Made By The Executor Or Administrator: There is no discretion granted to executors or administrators; they must be vigilant in interposing against all claims presented for allowance against the funds of the estate committed to their care e...

Section 83. Claims Not Allowable: A promissory note executed as a gift, charges of a physician for post mortem examination made on the coroner's inquest are not proper charges against an estate.6 (c) It is the duty of the executor to...

Section 84. Amount To Be Allowed; Limited By Statement In Claim: Where the claim has been filed by the creditor he is precluded upon the hearing of the claim to demand a judgment for an amount greater than that specified in the claim itself. It is the duty of the c...

Chapter IX. Classification And Allowance Of Claims. Section 85. Classification And Payment Of Debts: Statutes provide that the estates of the decedent shall be distributed in certain ways, and more generally provide for a just and equitable payment rather than the technical legal payment, relating to...

Section 86. Overpayment; Administrator May Recover: If an administrator pays the claim in full under the belief that the estate is amply able to meet all its obligations, he is entitled, if it is afterwards discovered that the funds of the estate are i...

Section 87. Annual Accounts: Executors and administrators are required to file and present accounts and reports of their administration to the court by whom they are appointed at various times during the course of the administrat...

Section 88. Distribution: When the final account is presented and the question of ultimate settlement is before the court the court is in duty bound to ascertain the amount of money and assets belonging to the estate and the t...

Section 89. Contents Of Accounts: Accounts should be made after the manner of any statement of account; it should show each item with which the administrator is charged, the date when the same is received by him, the amount or value, ...

Section 90. Partial Distribution: At any time after the administration the heirs or distributees have a right to apply to the court for an order of distribution either of the whole funds or of a part of them. The circumstances present...

Section 91. Interest On Balance: If the account rendered by the administrator shows that there is a balance due after paying out all moneys required of him by the administrator he is not chargeable with interest upon the funds in his...

Section 92. Attorney's Fees: All charges made by counsel, to which an administrator is entitled in all cases, are proper charges against the estate. The administrator is entitled to the advice of attorneys and the services must b...

Section 93. Final Settlement: When the administrator has performed all his duties, paid all the debts due the estate, and performed all orders of the court, he becomes entitled then to file his final account and report the final s...

Section 94. Chancery Jurisdiction: If there is such a conflict of interests in the settlement of the estate a court of chancery may entertain a bill for the final adjustment and settlement of the estate. The Probate Court may exercise ...

Section 95: The courts of probate throughout the country and in the several states are granted, if not by statute, by the inherent power of every court to inforce its own commands, the right to compel a settlemen...

Section 96. Order Of Distribution: When the court has entered an order of proving the final account of the executor or administrator and the payment of the debts and liabilities has been shown the balance remaining in the hands of the ...

Section 97. Rules Of Descent: The statutes of the several states fix the manner in which the property of the decedent is to be distributed where such decedent has left no will. Equity principles apply in the application for approv...

Questions. Criminal Law: Chapter I Page 12. 1. What are the sources of criminal law? Pages 13-14. 1. When shall we refer to the common law on interpretation of statutes? 2. What is the difference between a tort and a cri...

Questions. Criminal Procedure: Chapter I Page 213. 1. When and under what circumstances may a private person make an arrest? Page 214. 1. When may an officer make an arrest without a warrant? Page 215. 1. In what kind of case ...

Questions. Thirty-Second Subject - Wills: Chapter I Page 302. 1. Define wills. Page 303. 1. Give an outline of the history of wills in England. Chapter II Page 304. 1. Classify wills. Page 305. 1. What are holographic wills? 2. What a...

Questions. Thirty-Third Subject - Executors And Administrators: Chapter 1 Page 332. 1. What is an executor? 2. What constitutes the administration of the decedent's estate? Page 333. I. How is the appointment of an executor of a will accomplished? Page 334. ...

Headaches Begone! A Systemic Approach To Healing Your Headaches

Don't Let Your Bike Seat Ruin Your Sex Life Book