SEARCH, SEARCH WARRANT

SEARCH, SEARCH WARRANT

    29.12.19  

SEARCH, crim. law. An examination of a man's house, premises or person, for the purpose of discovering proof of his guilt in relation to some crime or misdemeanor of which be is accused.

2. The constitution of the United. States, amendments, art. 4, protects the people from unreasonable searches and seizures. 3 Story, Const. §1895; Rawle, Const. ch. 10, p. 127; 10 John. R. 263; 11 John. R. 500; 3 Cranch, 447.

3. By the act of March 2, 1799, s. 68, 1 Story's L. U. S. 632, it is enacted, that every collector, naval officer, and surveyor, or other person specially appointed, by either of them, for that purpose, shall have fall power and authority to enter any ship or vessel, in which they shall have reason to suspect any goods, wares, or merchandise, subject to duty, are concealed, and therein to search for, seize, and secure any such goods, wares, or merchandise; and if they shall have cause to suspect a concealment thereof in any particular dwelling house, store, building, or other place they or either of them shall; upon proper application, on oath, to any justice of the peace, be entitled to a warrant to enter such house, store, or other place, (in the day time only, and there to search for such goods; and if any shall be found, to seize and secure the same for trial; and all such goods, wares, and merchandise, on which the duties shall not have been paid, or secured to be paid, shall be forfeited.

SEARCH, practice. An examination made in the proper lien office for mortgages, liens, judgments, or other encumbrances, against real estate. The certificate given by the officer as to the result of such examination is also called a search.

2. Conveyancers and others who cause searches to be made ought to be very careful that they should be correct, with regard, 1. To the time during which the person against whom the search has been made owned the premises. 2. To the property searched against, which ought to be properly described. 3. To the form of the certificate of search.

SEARCH, RIGHT OF, mar. law. The right existing in a belligerent to examine and inspect the papers of a neutral vessel at sea. On the continent of Europe, this is called the right of visit. Dalloz, Dict. mots Prises Maritimes, n. 104-111.

2. The right does not extend to examine the cargo; nor does it extend to a ship of war, it being strictly confined to the searching of merchant vessels. The exercise of the right is to prevent the commerce of contraband goods. Although frequently resisted by powerful neutral nations, yet this right appears now to be fixed beyond contravention. The penalty for violently resisting this right is the confiscation of the property so withheld from visitation. Unless in extreme cases of gross abuse of his right by a belligerent, the neutral has no right to resist a search. 1 Kent, Com. 154; 2 Bro. Civ. and Adm. Law, 319; Mann. Comm. B. 3, c. 11.

SEARCH WARRANT, crim. law, practice. A warrant (q. v.) requiring the officer to whom it is addressed, to search a house or other place therein specified, for property therein alleged to have been stolen; and if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the warrant, or some other justice of the peace, or other lawfully authorized officer. It should be given under the hand and seal of the justice, and dated.

2. The constitution of the United States, amendments, art. 4, declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

3. Lord Hale, 2 P. C. 149, 150, recommends great caution in granting such warrants. 1. That they be, not granted without oath made before a justice of a felony committed, and that the complainant has probable cause to suspect they are in such a house or place, and his reasons for such suspicion. 2. That such warrants express that the search shall be made in day time. 3. That they ought to be directed to a constable or other proper officer, and not to a private person. 4. A search warrant ought to command the officer to bring the stolen goods and the person in whose custody they are, before some justice of the peace. Vide 1 Chit. Cr. Law, 57, 64; 4 Inst. 176; Hawk. B. 2, c. 13, s. 17, n. 6; 11 St. Tr; 321; 2 Wils. 149, 291; Burn's Just. h. t.; Williams' Just. h. t.

SEARCHER, Eng. law. An officer of the customs, whose duty it is to examine and search all ships outward bound, to ascertain whether they have any prohibited or uncustomed goods on board.

GUILT, GUILTY

GUILT, GUILTY

    29.12.19  

GUILT, crim. law. That quality which renders criminal and liable to punishment; or it is that disposition to violate the law, which has manifested itself by some act already done. The opposite of innocence. Vide Rutherf. Inst. B. 1, c. 18, s. 10.

2. In general everyone is presumed innocent until guilt has been proved; but in some cases the presumption of guilt overthrows that of innocence; as, for example, where a party destroys evidence to which the opposite party is entitled. The spoliation of papers, material to show the neutral character of a vessel, furnishes strong presumption against the neutrality of the ship. 2 Wheat. 227. Vide Spoliation.

GUILTY. The state or condition of a person who has committed a crime, misdemeanor or offence.

2. This word implies a malicious intent, and must be applied to something universally allowed to be a crime. Cowp. 275.

3. In pleading, it is a plea by which a defendant who is charged with a crime, misdemeanor or tort, admits or confesses it. In criminal proceedings, when the accused is arraigned, the clerk asks him,: How say you, A B, are you guilty or not guilty?" His answer, which is given ore tenus, is called his plea; and when he admits the charge in the indictment he answers or pleads guilty.

PERJURY

PERJURY

    28.12.19  

 
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PERJURY, crim. law. This offence at common law is defined to be a wilful false oath, by one who being lawfully required to depose the truth in any judicial proceedings, swears absolutely in a matter material to the point in question, whether he be believed or not.

2. If we analyze this definition we will find, 1st. That the oath must be wilful. 2d. That it must be false. 3d. That the party was lawfully sworn. 4th. That the proceeding was judicial. 6th. That the assertion was absolute. 6th. That the falsehood was material to the point in question.

3. - 1. The intention must be wilful. The oath must be taken and the falsehood asserted with deliberation, and a consciousness of the nature of the statement made; for if it has arisen in consequence of inadvertency, surprise or mistake of the import of the question, there was no corrupt motive; Hawk. B. 1, c. 69, s. 2; but one who swears wilfully and deliberately to a matter which he rashly believes, which is false, and which he had no probable cause for believing, is guilty of perjury. 6 Binn. R. 249. See 1 Baldw. 370; 1 Bailey, 50.

4. - 2. The oath must be false. The party must believe that what he is swearing is fictitious; for, if intending to deceive, he asserts that which may happen to be true, without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him. 3 Inst. 166 Hawk. B. 1, c. 69, s. 6.

5. - 3. The party must be lawfully sworn. The person by whom the oath is administered must have competent authority to receive it; an oath, therefore, taken before a private person, or before an officer having no jurisdiction, will not amount to perjury. 3 Inst. 166; 1 Johns. R. 498; 9 Cowen, R. 30; 3 M'Cord, R. 308; 4 M'Cord, It. 165; 2 Russ. on Cr. 520; 3 Carr. & Payne, 419; S. C. 14 Eng. Com. Law Rep. 376; 2 Chitt. Cr. Law, 304; 4 Hawks, 182; 1 N. & M. 546; 3 M'Cord, 308; 2 Hayw. 56; 8 Pick. 453.

6. - 4. The proceedings must be judicial. Proceedings before those who are in any way entrusted with the administration of justice, in respect of any matter regularly before them, are considered as judicial for this purpose. 2 Chitt. Crim. C. 303; 2 Russ. on Cr. 518; Hawk. B. 1, c. 69, s. 3. Vide 3 Yeates, R. 414; 9 Pet. Rep. 238. Perjury cannot therefore be committed in a case of which the court had no jurisdiction. 4 Hawks, 182; 2 Hayw. 56; 3 M'Cord, 308; 8 Pick. 453: 1 N. & McC. 546.

7. - 5. The assertion must be absolute. If a man, however, swears that he believes that to be true which he knows to be false, it will be perjury. 2 Russ. on Cr. 518; 3 Wils. 427; 2 Bl. Rep. 881; 1 Leach, 242; 6 Binn. Rep. 249; Lofft's Gilb. Ev. 662.

8. - 6. The oath must be material to the question depending. Where the facts sworn to are wholly foreign from the purpose and altogether immaterial to the matter in question, the oath does not amount to a legal perjury. 2 Russel on Cr. 521; 3 Inst. 167; 8 Ves. jun. 35; 2 Rolle, 41, 42, 369; 1 Hawk. B. 1, c. 69, s. 8; Bac. Ab. Perjury, A; 2 N. & M. 118; 2 Mis. R. 158. Nor can perjury be assigned upon the valuation under oath, of a jewel or other thing, the value of which consists in estimation. Sid. 146; 1 Keble, 510.

9. It is not within the plan of this work to cite all the statutes passed by the general government, or the several states on the subject of perjury. It is proper, however, here to transcribe a part of the 13th section of the act of congress of March 3, 1825, which provides as follows: "If any person in any case, matter, bearing, or other proceeding, when an oath or affirmation shall be required to be taken or administered under or by any law or laws of the United States, shall, upon the taking of such oath or affirmation, knowingly and willingly swear or affirm falsely, every person, so offending, shall be deemed guilty of perjury, and shall, on conviction thereof, be punished by fine, not exceeding two thousand dollars, and by imprisonment and confinement to bard labor, not exceeding five years, according to the aggravation of the offence. And if any person or persons shall knowingly or willingly procure any such perjury to be committed, every person so offending shall be deemed guilty of subornation of perjury, and shall on conviction thereof, be punished. by fine, not exceeding two thousand dollars, and by imprisonment and confinement to bard labor, not exceeding five years, according to the aggravation of the offence."

10. In general it may be observed that a perjury is committed as well by making a false affirmation, as a false oath. Vide, generally, 16 Vin. Abr. 307; Bac. Abr. h. t.; Com. Dig. Justices of the Peace, B 102 to 106; 4 Bl. Com. 137 to 139; 3 Inst. 163 to 168; Hawk. B. 1, c. 69; Russ. on Cr. B. 5, c. 1; 2 Chitt. Cr. L. c. 9; Roscoe on Cr. Ev. h. t.; Burn's J. h. t. Williams' J. h. t.

Legal meaning and history of: PENITENTIARY

Legal meaning and history of: PENITENTIARY

    28.12.19  

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PENITENTIARY. A prison for the punishment of convicts.

2. There are two systems of penitentiaries in the United States, each of which is claimed to be the best by its partizans: the Pennsylvauia system and the New York system. By the former, convicts are lodged in separate, well lighted, and well ventilated cells, where they are required to work, during stated hours. During the whole time of their confinement, they are never permitted to see or speak with each other. Their usual employments are shoemaking, weaving, winding yarn, picking wool, and such like business. The only punishments to which convicts are subject, are the privation of food for short periods, and confinement without labor in dark, but well aired cells; this discipline has been found sufficient to keep perfect order; the whip ana all other corporal punishments are prohibited. The advantages of the plan are numerous. Men cannot long remain in solitude without labor convicts, when deprived of it, ask it as a favor, and in order to retain it, use, generally, their best exertions to do their work well; being entirely secluded, they are of course unknown to their fellow prisoners, and can form no combination to escape while in prison, or associations to prey upon society when they are out; being treated with kindness, and afforded books for their instruction and amusement, they become satisfied that society does not make war upon them, and, more disposed to return to it, which they are not prevented from doing by the exposure of their fellow prisoners, when in a strange place; the labor of the convicts tends greatly to defray the expenses of the prison. The disadvantages which were anticipated have been found, to be groundless.; Among these were, that the prisoners would be unhealthy; experience has proved the contrary; that they would become insane, this has also been found to be otherwise; that solitude is incompatible with the performance of business; that obedience to the discipline of the prison could not be enforced. These and all other objections to this system are, by its friends, believed to be without force.

3. The New York system, adopted at Auburn, which was probably copied from the penitentiary at Ghent, in the Netherlands, called La Maison de Force, is founded on the system of isolation and separation, as well as that of Pennsylvania, but with this difference, that in the former the prisoners are confined to their separate cells during the night only; during the working hours in the day time they labor together in work shops appropriated to their use. They cat their meals together, but in such a manner as not to be able to speak with each other. Silence is also imposed upon them at their labor. They perform the labor of carpenters, blacksmiths, weavers, shoemakers, tailors, coopers, gardeners, wood sawyers, &c. The discipline of the prison is enforced by stripes, inflicted by the assistant keepers, on the backs of the prisoners, though this punishment is rarely exercised. The advantages of this plan are, that the convicts are in solitary confinement during the night; that their labor, by being joint, is more productive; that, inasmuch as a clergyman is employed to preach to the prisoners, the system affords an, opportunity for mental and moral improvements. Among the objections made to it are, that the prisoners have opportunities of communicating with each other, and of forming plans of escape, and when they are out of prison, of associating together in consequence of their previous acquaintance, to the detriment of those who wish to return to virtue, and to the danger of the public; that the discipline is degrading, and that it engenders bitter resentment in the mind of the convict. Vide, generally, on the subject of penitentiaries, Report of the Commissioners (Messrs. King, Shaler, and Wharton,) on the Penal Code of Pennsylvania; De Beaumont and De Toqueville, on the Penitentiary System of the United States; Mease on the Penitentiary System of Pennsylvania; Carey on ditto; Reports of the Boston Prison Discipline Society; Livingston's excellent Introductory Report to the Code of Reform and Prison Discipline, prepared for the state of Louisiana; Encycl. Americ. art. Prison Discipline; De. I'Etat Actuel des Prisons en France, par L. M. More au Christophe; Dalloz, Dict. mot Peine, §1, n. 3, and Supplem. mots Prisons et Bagnes.

SLAVE, SLAVE TRADE, SLAVERY

SLAVE, SLAVE TRADE, SLAVERY

    27.12.19  

SLAVE. A man who is by law deprived of his liberty for life, and becomes the property of another.

2. A slave has no political rights, and generally has no civil rights. He can enter into no contract unless specially authorized by law; what he acquires generally, belongs to his master. The children of female slaves follow the condition of their mothers, and are themselves slaves.

3. In Maryland, Missouri and Virginia slaves are declared by statute to be personal estate, or treated as such. Anth. Shep. To. 428, 494; Misso. Laws, 558. In Kentucky, the rule is different, and they are considered real estate. 1 Kty. Rev. Laws, 566 1 Dana's R. 94.

4. In general a slave is considered a thing and not a person; but sometimes he is considered as a person; as when he commits a crime; for example, two white persons and a slave can commit a riot. 1 McCord, 534. See Person.

5. A slave may acquire his freedom in various ways: 1. By manumission, by deed or writing, which must be made according to the laws of the state where the master then acts. 1 Penn. 10; 1 Rand. 15. The deed may be absolute which gives immediate freedom to the slave, or conditional giving him immediate freedom, and reserving a right of service for a time to come; 6 Rand. 652; or giving him his freedom as soon as a certain condition shall have been fulfilled. 2 Root, 364; Coxe, 4. 2. By manumission by will. When there is an express emancipation by will, the slave will be free, and the testator's real estate shall be charged with the payment of his debts, if there be not enough personal property without the sale of the slaves. 9 Pet. 461. See Harper, R. 20. The manumission by will may be implied, as, where the master devises property real or personal to his slave. 2 Pet; 670; 5 Har. & J. 190. 3. By the removal of the slave with the consent of the master, animo morandi, into one of the United States where slavery is forbidden by law; 2 Mart. Lo. Rep. N. J. 401; or when he sojourns there longer than is allowed by the law of the state. 7 S. & R. 378; 1 Wash. C. C. Rep. 499. Vide Stroud on Slavery; Bouv. Inst. Index, h. t.; and as to the rights of one who, being free, is held as a slave, 2 Gilman, 1; 3 Yeates, 240.

SLAVE TRADE, criminal law. The infamous traffic in human flesh, which though not prohibited by the law of nations, is now forbidden by the laws and treaties of most civilized states.

2. By the constitution of the United States, art. 1, s. 9, it is provided, that the "migration or importation of such persons as any of the states now existing (in 1789,) shall think proper to admit, shall not be probibited by the congress, prior to the year one thousand eight hundred and eight." Previously to that date several laws were enacted, which it is not within the plan of this work to cite at large or to analyze; they are here referred to, namely; act of 1794, c. 11, 1 Story's laws U. S. 319; act of 1800, c. 51, 1 Story's Laws U. S. 780 act of 1803, c. 63, 2 Story's Laws U. S 886; act of 1807, c. 77, 2 Story's Laws U. S. 1050; these several acts forbid citizens of the United States, under certain circumstances, to equip or build vessels for the purpose of carrying on the slave trade, and the last mentioned act makes it highly penal to import slaves into the United States after the first day of January, 1808. The act of 1818, c. 86, 3 Story's Laws U. S. 1698 the act of 1819, c. 224, 3 Story's Laws U. S. 1752; and the act of 1820, c. 113, 3 Story's Laws U. S. 1798, contain further prohibition of the slave trade , and punish tho violation of their several provisions with the highest penalties of the law. Vide, generally, 10 Wheat. R. 66; 2 Mason, R. 409; 1 Acton, 240; 1 Dodson, 81, 91, 95; 2 Dodson, 238; 6 Mass. R. 358; 2 Cranch, 336; 3 Dall. R. 297; 1 Wash. C. C. Rep. 522; 4 Id. 91; 3 Mason, R. 175; 9 Wheat. R. 391; 6 Cranch, 330; 5 Wheat. R. 338; 8 Id. 380; 10 Id. 312; 1 Kent, Com. 191.

SLAVERY. The state or condition of a slave.

2. Slavery exists in most of the southern states. In Pennsylvania, by the act of March, 1780, for the gradual abolition of slavery, it has been almost entirely removed in Massachusetts it was held, soon after the Revolution, that slavery had been abolished by their constitution; 4 Mass. 128; in Connecticut, slavery has been totally extinguished by legislative provisions; Reeve's Dom. Bel. 340; the states north of Delaware, Maryland and the river Ohio, may be considered as free States, where slavery is not tolerated. Vide Stroud on Slavery; 2 Kent, Com. 201; Rutherf. Inst. 238.

TREASON

TREASON

    27.12.19  

TREASON, crim. law. This word imports a betraying, treachery, or breach of allegiance. 4 Bl. Com. 75.

2. The constitution of the United States, art. 3, s. 3, defines treason against the United States to consist only in levying war (q. v.) against them, or in adhering to their enemies, giving them aid or comfort. This offence is punished with death. Act of April 30th, 1790, 1 Story's Laws U. S. 83. By the same article of the constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. Vide, generally, 3 Story on the Const. ch. 39, p. 667; Serg. on the Const. ch. 30; United States v. Fries, Pamph.; 1 Tucker's Blackst. Comm. Appen. 275, 276; 3 Wils. Law Lect. 96 to 99; Foster, Disc. I; Burr's Trial; 4 Cranch, R. 126, 469 to 508; 2 Dall. R. 246; 355; 1 Dall. Rep. 35; 3 Wash. C. C. Rep. 234; 1 John. Rep. 553 11 Johns. R. 549; Com. Dig. Justices, K; 1 East, P. C. 37 to 158; 2 Chit. Crim. Law, 60 to 102; Arch. Cr. Pl. 378 to 387.

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More than 20,000 Legal Forms

 

ATTACHMENT, TO ATTACH, ATTACHMENT OF PRIVILEGE

ATTACHMENT, TO ATTACH, ATTACHMENT OF PRIVILEGE

    1.2.18  

TO ATTACH, crim. law, practice. To an attachment for contempt for the non-take or apprehend by virtue of the order of a writ or precept, commonly called an attachment. It differs from an arrest in this, that he who arrests a man, takes him to a person of higher power to be disposed of; but be who attaches, keeps the party attached, according to the exigency of his writ, and brings him into court oh the day assigned. Kitch. 279; Bract. lib. 4; Fleta, lib. 5, c. 24; 17 S. & R. 199.

ATTACHE'. Connected with, attached to. This word is used to signify those persons who are attached to a foreign legation. An attache is a public minister within the meaning of the Act of April 30, 1790, s. 37, 1 Story's L. U. S. 89, which protects from violence "the person of an ambassador or other public minister." 1 Bald. 240 Vide 2 W. C. C. R. 205; 4 W. C. C. R. 531; 1 Dall. 117; 1 W. C. C. R. 232; 4 Dall. 321. Vide Ambassador; Consul; Envoy; Minister.

EMBEZZLEMENT

EMBEZZLEMENT

    1.2.18  

EMBEZZLEMENT, crim. law. The fraudulently removing and secreting of personal property, with which the party has been entrusted, for the purpose of applying it to his own use.

2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides, that if any person, within any of the laces under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin, the personal goods of another; or if any person or persons, having, at any time hereafter, the charge or custody of any arms, ordnance, munition, shot, powder, or habiliments of war, belonging to the. United States, or of any victuals provided for the victualling of any soldiers, gunners, marines, or pioneers, shall, for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impede the service of the United States, embezzle, purloin, or convey away, any of the said arms, ordnance, munition, shot or powder, habiliments of war, or victuals, that then, and in every of the cases aforesaid, the persons so offending, their counsellors, aiders and abettors, (knowing of, and privy to the offences aforesaid,)

MERGER

MERGER

    28.12.17  

MERGER. Where a greater and lesser thing meet, and the latter loses its separate existence and sinks into the former. It is applied to estates, rights, crimes, and torts.

MERGER, estates. When a greater estate and less coincide and meet in one and the same person, without any intermediate estate, the less is immediately merged, that is, sunk or drowned in the latter; example, if there be a tenant for years, and the reversion in fee simple descends to, or is purchased by him, the term of years is merged in the inheritance, and no longer exists; but they must be to one and the same person, at one and the same time, in one and the same right. 2 BL Com. 177; 3 Mass. Rep. 172; Latch, 153; Poph. 166; 1 John. Ch. R. 417; 3 John. Ch. R. 53; 6 Madd. Ch. R. 119.

MANSLAUGHTER,

MANSLAUGHTER,

    28.12.17  

MANSLAUGHTER, crim. law. The unlawful killing of another without malice either express or implied. 4 Bl. Com. 190 1 Hale, P. C. 466. The distinctions between manslaughter and murder, consists in the following. In the former, though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter. 1 East, P. C. 218 Foster, 290.

2. It also differs from murder in this, that there can be no accessaries before the fact, there having been no time for premeditation. 1 Hale, P. C. 437; 1 Russ. Cr. 485. Manslaugbter is voluntary, when it happens upon a sudden heat; or involuntary, when it takes place in the commission of some unlawful act.

MALICE; MALICE AFORETHOUGHT

MALICE; MALICE AFORETHOUGHT

    28.12.17  

MALICE, crim. law. A wicked intention to do an injury. 4 Mason, R. 115, 505: 1 Gall. R. 524. It is not confined to the intention of doing an injury to any particular person, but extends to an evil design, a corrupt and wicked notion against some one at the time of committing the crime; as, if A intended to poison B, conceals a quantity of poison in an apple and puts it in the way of B, and C, against whom he had no ill will, and who, on the contrary, was his friend, happened to eat it, and die, A will be guilty of murdering C with malice aforethought. Bac. Max. Reg. 15; 2 Chit. Cr. Law, 727; 3 Chit. Cr. Law,. 1104.

ARSON

ARSON

    28.12.17  

ARSON, criminal law. At common law an offence of the degree of felony; and is defined by Lord Coke to be the malicious and voluntary burning of the house of another, by night or day. 3 Inst. 66.

2. In order to make this crime complete, there must be, 1st, a burning of the house, or some part of it; it is sufficient if any part be consumed, however small it may be. 9 C. & P. 45; 38 E. C. L. R. 29; 16 Mass. 105. 2d. The house burnt must; belong to another; but if a man set fire to his own house with a view to burn his neighbor's, and does so, it is at least a great misdemeanor, if not a felony. 1 Hale, P. C. 568; 2 East, P. C. 1027; 2 Russ. 487. 3d. The burning must have been both malicious and willful.

ARRAIGNMENT

ARRAIGNMENT

    28.12.17  

ARRAIGNMENT, crim. law practice. Signifies the calling of the defendant to the bar of the court, to answer the accusation contained in the indictment. It consists of three parts.

2. – 1. Calling the defendant to the bar by his name, and commanding him to hold up his hand; this is done for the purpose of completely identifying the prisoner, as the person named in the indictment; the holding20up his hand is not, however, indispensable, for if the prisoner should refuse to do so, he may be identified by any admission that he is the person intended. 1 Bl. Rep. 3.

ARREST, ARREST IN CIVIL CASES, ARRESTMENT

ARREST, ARREST IN CIVIL CASES, ARRESTMENT

    28.12.17  

ARREST. To stop; to seize; to deprive one of his liberty by virtue of legal authority.

ARREST IN CIVIL CASES, practice. An arrest is the apprehension of a person by virtue of a lawful authority, to answer the demand against him in a civil action.

2. To constitute an arrest, no actual force or manual touching of the body is requisite; it is sufficient if the party be within the power of the officer, and submit to the arrest. 2 N. H. Rep. 318; 8 Dana, 190; 3 Herring. 416; 1 Baldw. 239; Harper, 453; 8 Greenl. 127; 1 Wend. 215 2 Blackf. 294. Barewords, however, will not make an arrest, without laying the person or otherwise confining him. 2 H. P. C. 129 1 Burn's Just. 148; 1 Salk. 79. It is necessarily an assault, but not necessarily a battery. Cases Temp. Hardw. 300.

SELF-DEFENCE

SELF-DEFENCE

    27.12.17  

SELF-DEFENCE, crim. law. The right to protect one's person and property from injury.

2. It will be proper to consider, 1. The extent of the right of self-defence. 2. By whom it may be exercised. 3. Against whom. 4. For what causes.

3. - 1. As to the extent of the right, it may be laid down, first, that when threatened violence exists, it is the duty of the person threatened to use all, prudent and precautionary measures to prevent the attack; for example, if by closing a door which was usually left open, one could prevent an attack, it would be prudent, and perhaps the law might require, that it should be closed, in order to preserve the peace, and the aggressor might in such case be held to bail for his good behaviour; secondly, if, after having taken such proper precautions, a party should be assailed, he may undoubtedly repel force by force, but in most instances cannot,

CONSPIRACY; CONSPIRATORS

CONSPIRACY; CONSPIRATORS

    27.12.17  

CONSPIRACY, crim. law, torts. An agreement between two or more persons to do an unlawful act, or an act which may become by the combination injurious to others. Formerly this offence was much more circumscribed in its meaning than it is now. Lord Coke describes it as "a consultation or agreement between two or more to appeal or indict an innocent person falsely and maliciously, whom accordingly they cause to be indicted or appealed and afterwards the party is acquitted by the verdict of twelve men."

COERCION

COERCION

    27.12.17  

COERCION, criminal law, contracts. Constraint; compulsion; force.

2. It is positive or presumed. 1. Positive or direct coercion takes place when a man is by physical force compelled to do an act contrary to his will; for example, when a man falls into the hands of the enemies of his country, and they compel him, by a just fear of death, to fight against it.

3. - 2. It is presumed where a person is legally under subjection to another, and is induced, in consequence of such subjection, to do an act contrary to his win. A married woman, for example, is legally under the subjection of her husband, and if in his company she commit a crime or offence, not malum in se, (except the offence of keeping a bawdy-house, In which case she is considered by the policy of the law as a principal, she is presumed to act under this coercion.

4. As will (q. v.) is necessary to the commission of a crime, or the making of a contract, a person coerced into either, has no will on the, subject, and is not responsible. Vide Roscoe's Cr. Ev. 7 85, and the cases there cited; 2 Stark. Ev. 705, as to what will, amount to coercion in criminal cases.

EXECUTE... EXECUTRIX

EXECUTE... EXECUTRIX

    14.8.17  

TO EXECUTE. To make, to perform, to do, to follow out. This term is frequently used in the law; as, to execute a deed is to make a deed.

2. It also signifies to perform, as to execute a contract; hence some contracts are called executed contracts, and others are called executory contracts.

3. To execute also means to put to death by virtue of a lawful sentence; as, the sheriff executed the convict.

CRIME, CRIME AGAINST NATURE

CRIME, CRIME AGAINST NATURE

    4.7.17  

CRIME. A crime is an offence against a public law. This word, in its most general signification, comprehends all offences but, in its limited sense, it is confined to felony. 1 Chitty, Gen. Pr. 14.

2. The term misdemeanor includes every offence inferior to felony, but punishable by indictment or by-particular prescribed proceedings.

3. The term offence, also, may be considered as, having the same meaning, but is usually, by itself, understood to be a crime not indictable but punishable, summarily, or by the forfeiture of, a penalty. Burn's Just. Misdemeanor.

4. Crimes are defined and punished by statutes and by the common law. Most common law offences are as well known, and as precisely ascertained, as those which are defined by statutes; yet, from the difficulty of exactly defining and describing every act which ought to be punished, the vital and preserving principle has been adopted, that all immoral acts which tend to the prejudice of the community are punishable by courts of justice. 2 Swift's Dig.

5. Crimes are mala in se, or bad in themselves; and these include. all offences against the moral law; or they are mala prohibita, bad because prohibited, as being against sound policy; which, unless prohibited, would be innocent or indifferent. Crimes may be classed into such as affect:

6.- 1. Religion and public worship: viz. blasphemy, disturbing public worship.

7. - 2. The sovereign power: treason, misprision of treason.

8. - 3. The current coin: as counterfeiting or impairing it.

9. - 4. Public justice: 1. Bribery of judges or jurors, or receiving the bribe. 2. Perjury. 3. Prison breaking. 4. Rescue. 5. Barratry. 6. Maintenance. 7. Champerty. 8. Compounding felonies. 9. Misprision of felonies. 10. 6ppression. 11. Extortion. 12. Suppressing evidence. 13. Negligence or misconduct in inferior officers. 14. Obstructing legal process. 15. Embracery.

10. - 5. Public peace. 1. Challenges to fight a duel. 2. Riots, routs and unlawful assemblies. 3. Affrays. 4. Libels. 11. - 6. Public trade. 1. Cheats. 2. Forestalling. S. Regrating. 4. Engross- ing. 5. Monopolies.

12. - 7. Chastity. 1. Sodomy. 2. Adultery. 3. Incest. 4. Bigamy. 5. Fornication.

13. - 8. Decency and morality. 1. Public indecency. 2. Drunkenness. 3. Violatiug the grave.

14. - 9. Public police and economy. 1. Common nuisances. 2. Keeping disorderly houses and bawdy houses. 3. Idleness, vagrancy, and beggary.

15. - 10. Public. policy. 1. Gambling. 2. Illegal lotteries.

16. - 11. Individuals. 1. Homicide, which is justifiable, excusable or felonious.

2. Mayhem. 3. Rape. 4. Poisoning, with intent to murder. 5. Administering drugs to a woman quick with child to cause, miscarriage. 6. Concealing death of bastard child.

7. Assault and battery, which is either simple or with intent to commit some other crime. 8. kidnapping. 9. False imprisonment. 10. Abduction.

17. - 12. Private property. 1. Burglary. 2. Arson. 3. Robbery. 4., Forgery. Counterfeiting. 6. Larceny. 7. Receiving stolen goods, knowing them to have been stolen, or theft-bote. 8. Malicious mischief. 18. - 13. The public, individuals, or their property, according to the intent of the criminal. 1. Conspiracy.

CRIME AGAINST NATURE. Sodomy. It is a crime not fit to be named; peccatum horribile, inter christianos non nominandum. 4 Bl. Com. 214. See Sodomy.

CRIMEN FALSI, civil law, crime. It is a fraudulent alteration, or forgery, to conceal or alter the truth, to the prejudice of another. This crime may, be committed in three ways, namely: 1. By forgery. 2. By false declarations or false oath, perjury. 3. By acts; as, by dealing with false weights and measures, by altering the current coin, by making false keys, and the like. Vide Dig. 48, 10, 22; Dig. 34, 8 2; Code, lib. 9, t. 22, 1. 2, 5, 9. 11, 16, 17, 23, and 24; Merl. Rep. h. t.; 1 Bro. Civ. Law, 426; 1 Phil. Ev. 26; 2 Stark. Ev. 715.

2. What is understood by this, term in the common law, is not very clearly defined. Peake's Ev. 133; 1 Phil. Ev. 24; 2 Stark. Ev. 715. It extends to forgery, perjury, subornation of perjury, suppression of testimony by bribery, and conspiracy to convict of perjury. See 12 Mod. 209; 2 S. & R. 552; 1 Greenl. Ev. 373; and article Faux.

CRIMINAL. Relating to, or having the character of crime; as, criminal law, criminal conversation, &c. It also signifies a person convicted of a crime.

CRIMINAL CONVERSATION, crim. law. This phrase is usually employed to denote the crime of adultery. It is abbreviated crim. con. Bac. Ab. Marriage, E 2; 4 Blackf. R. 157.

2. The remedy for criminal conversation is, by an action on the case for damages. That the plaintiff connived, or assented to, his wife's infidelity, or that he prostituted her for gain, is a complete answer to the action. See Connivance. But the facts that the wife's character for chastity was bad before the plaintiff married her; that he lived with her after he knew of the criminal intimacy with the defendant; that he had connived at her intimacy with other men;, or that the plaintiff had been false to his wife, only go in mitigation of damages. 4 N. Hamp. R. 501.

3. The wife cannot maintain an action for criminal conversation with her hushand; and for this, among other reasons, because her hushand, who is particeps criminis, must be joined with her as plaintiff.

CRIMINAL LETTERS. An instrument in Scotland, which contains the charges against a person accused of a crime. Criminal letters differ from an indictment, in that the former are not, like an indictment, the mere statement of the prosecutor, but sanctioned by a judge. Burt. Man. Pub. L. 301, 302.

CRIMINALITER. Criminally; opposed to civiliter, civilly.

2. When a person commits a wrong to the injury of another, he is answerable for it civiliter, whatever may have been his intent; but, unless his intent has been unlawful the is not answerable criminaliter. 1 East, 104.

TO CRIMINATE. To accuse of a crime; to admit having committed a crime or misdemeanor.

2. It is a rule, that a witness cannot be compelled to answer any question which has a tendency to expose him to a penalty, or to any kind of punishment, or to a criminal charge. 3 Bouv. Inst. n. 3209-12; 4 St. Tr. 6; 10 How. St. Tr.@ 1096; 6 St. Tr. 649; 16 How. St. Tr. 1149; 2 DougI. R. 593; 2 Ld. Raym. 1088; 24 How. St. Tr. 720; 16 Ves. jr. 242; 2 Swanst. Ch. R. 216; 1 Cranch. R. 144; 2 Yerg. R. 110 5 Day, Rep. 260; I Carr., & Payne, 11 2 Nott & M'C. 13; 6 Cowen, Rep. 254; 2 Peak. N. P. C. 106; 1 John. R. 498; 12 S. & R. 284; 8 Wend. 598.

3. An accomplice, admitted to give evidence against his associates in guilt, is bound to make a full and fair confession of the whole truth respecting the subject-matter of the prosecution; but he is not bound to answer with respect to his share in other offences, in which he was not concerned with the prisoner. 9 Cowen, R. 721, note (a); 2 Carr. & Payne, 411. Vide Disgrace,; Witness;

CRIMINATOIN. The act by which a party accused, is proved to be guilty.

2. It is a rule, founded in common sense, that no one is bound to criminate himself. A witness may refuse to answer a question, when the answer would criminate him, and subject him to punishment. And a party in equity is not bound to answer a bill, when the answer would form a step in the prosecution. Coop. Eq. Pl. 204; Mitf. Eq. Pl. by Jeremy, 194; Story, Eq,. Pl. 591; 14 Ves. 59.

CONTEMPT

CONTEMPT

    4.7.17  

CONTEMPT, crim. law. A wilful disregard or disobedience of a public authoritoy.

2. By the Constitution of the United States, each house of congress may determine the rules of its proceeding's, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. The same provision is substantially contained in the constitutions of the several states.

3. The power to make rules carries that of enforcing them, and to attach persons who violate them, and punish them for contempts. This power of punishing for contempts, is confined to punishment during the session of the legislature, and cannot extend beyond it; 6 Wheat. R. 204, 230, 231 and, it seems this power cannot be exerted beyond imprisonment.

4. Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings. Bac. Ab. Courts and their jurisdiction in general, E; Rolle's Ab. 219; 8 Co. 38 11 Co. 43 b.; 8 Shepl. 550; 5 Ired. R. 199.

5. In some states, as in Pennsylvania, the power to punish for contempts is restricted to offences committed by the officers of the court, or in its presence, or in disobedience of its mandates, orders, or rules; but no one is guilty of a contempt for any publication made or act done out of court, which is not in violation of such lawful rules or orders, or disobedience of its process. Similar provisions, limiting the power of the courts of the United States to punish for contempts, are incorporated in the Act March 2, 1831. 4 Sharsw. cont. of Stor. L. U. S. 2256. See Oswald's Case, 4 Lloyd's Debates, 141,. et seq.

6. When a person is in prison for a contempt, it has been decided in New York that he cannot be discharged by another judge, when brought before him on a habeas corpus; and, according to Chancellor Kent, 3 Com. 27, it belongs exclusively to the court offended to judge of contempts, and what amounts to them; and no other court or judge can, or ought to undertake, in a collateral way, to question or review an adjudication of a contempt made by another competent jurisdiction. This way be considered as the establisbed doctrine equally in England as in this country. 3 Wils. 188 14 East, R. 12 Bay, R. 182 6 Wheat. R. 204 7 Wheat. R. 38; 1 Breese, R. 266 1 J. J. Marsh. 575; Charlt. R. 136; 1 Blackf. 1669 Johns. 395 6 John. 337.