will not be permitted to bring it within the statute unless it is also within the statutory words.' Thus, § 221. "Breaking" or not - (Burglary).— Under words making punishable those who, with intent to commit any felony, "shall in the night-time enter without breaking, or in the day-time break and enter, any warehouse," an entry in the night by breaking was held not to be included.2 Place not within enumeration - (Gaming).-It being forbidden to set up a faro-table "in any dwelling-house, out-house, or place occupied by any tavern-keeper, retailer of wine, spirituous liquors, beer or cider," one in a locality not in terms mentioned — as, for instance, in a house used solely for this purpose was held not to be prohibited. One party only prohibited — (Living in fornication).— It was provided in Tennessee that "if any white man or woman shall presume to live with any negro, mustee or mulatto man or woman, as man and wife, each and every of the parties so of fending shall be liable to forfeit," etc. make the act penal only in the white other.1 And this was held to person, not also in the Clergy excluded under circumstances.- Where a statute ousts clergy from an offense when committed under specified circumstances, all, for a case to be within it, must transpire in the county of the trial. Again,— 1 Ante, § 194, and places there referred to; Rex v. Hammond, 2 East, P. C. 1119, 1 Leach, 444; Leonard v. Bosworth, 4 Conn. 421; Hall v. S., 20 Ohio, 7; Rex v. Senior, 1 Leach, 496, 2 East, P. C. 593; Melody v. Reab, 4 Mass. 471, 478. For further illustrations, see the cases cited to the five next following sections; also Rex v. Ellis. 8 D. & R. 173; S. v. Lovett, 3 Vt. 110; Rex v. Paddle, Russ. & Ry. 484; Carpenter v. P., 8 Barb. 603; S. v. Cooper, 16 Vt. 551; Hamuel v. S., 5 Mo. 260; Sharpe's Case, 2 Lewin, 233; Kyle v. S., 10 Ala. 236; 2 East, P. C. 919; Hawkins v. S., 3 Stew. & P. 63; S. v. Smitherman, 1 Ire. 14; Rex v. Remnant, 5 T. R. 169; Rex v. Mellish, Russ. & Ry. 80; Reg. v. Turner, 8 Car. & P. 755; Reg. v. Scott, 3 Q. B. 543; Campbell v. Com., 2 Rob. (Va.) 791; S. v. Curtis, 5 Humph. 601; Com. v. Barrett, 9 Leigh, 666; U. S. v. An Open Boat and Lading, 5 Mason, 120; Rex v. Watson, 2 East, P. C. 562, doubted in Rex v. Lavender, 2 East, P. C. 566; S. v. Savage, 32 Me. 583; Rex v. Ross, Russ. & Ry. 10, 2 East, P. C. 1067; Rex v. Ellis, 5 B. & C. 395, 8 D. & R. 173; U. S. v. Nott, 1 McLean, 499; S. v. Clemons, 3 Dev. 472; Williams v. Matthews, 3 Cow. 252; S. u. Black, 9 Ire. 378; Com. v. Gee, 6 Cush. 174; U. S. v. Hiler, Morris, 330. 2 Com. v. Carrol, 8 Mass. 490. 3 Baker v. S., 2 Har. & J. 5. 4S. v. Brady, 9 Humph. 74. See and compare ante, $$ 135, 136, 139, 140, 145; Crim. Law, I, §§ 225–228, 657-659. 52 East, P. C. 773. § 222. Time for penalty added to time of delay — (Recording marriage).— An Indiana statute required the official person who solemnizes a marriage to file the marriage certificate in the proper office within three months from its solemnization, under a penalty, for the delay after the first three months, of $5 a month. And it was held that no criminal liability arises until the lapse of four months; that is, until the full penalty for a month's delay is matured.1 "Cord of wood.”— Where a statute, regulating the sale of cord-wood, imposed a penalty of so much per cord "for every cord of wood bought and sold" contrary to its provisions, the court held that no penalty could be incurred in the purchase or sale of less than a cord.2 66 'Free negro,” omitted from penal part.- By a former Georgia statute, "if any slave, free negro, Indian," etc., shall do certain things mentioned, "any such slave or slaves, and his and their accomplices," shall suffer death. This was held not to apply to a free negro, who was mentioned only in the first clause.3 Contemplated circumstances wanting―(Credit to student).— A statute provided "that no person or persons shall give credit to any student of Yale College, being a minor, without the consent in writing of his parents or guardian, or of such officer or officers of the college as may be authorized by the government thereof to act in such cases, except for washing and medical aid." And it was held that, to render the commission of the offense possible, authority must have been conferred on some officer of the college, "by the government thereof,” to give or withhold the consent.1 "Privately"-(Larceny).— A statute against "privately " stealing is not violated when force is used; though, in matter of proof, the prosecutor need not show affirmatively that there was no force." So 1 Kent v. S., 8 Blackf. 163; 1 Bishop, Ala. 390; Butler v. Cook, 14 Ala. 576; Mar., Div. & S., § 812. 2 Pray v. Burbank, 12 N. H. 267. Ex parte George, T. U. P. Charl. 80. For another illustration of the same principle, see S. v. Roberts, 1 Tread. 116. So also S. v. Conover, 3 Harring. (Del.) 565; S. v. Moseley, 14 Frierson v. Hewitt, 2 Hill (S. C.), 499. 4 Morse v. S., 6 Conn. 9. 5 Rex v. Cartwright, 2 East, P. C. 641; Rex v. Jones, 2 East, P. C. 641. 6 Rex v. Matthews, 2 East, P. C. 642. $223. "Suffer" (Animals at large). An enactment that "no swine shall be suffered to go at large" is not violated when the animals escape without the owner's will.' "Adjoining."—Grounds separated from a dwelling-house by a narrow walk, and a paling with a gate in it, are not “adjoining" the dwelling-house.' Place and distance specified — (Liquor laws).— Intoxicating liquor was forbidden to be sold at a "booth, tent, wagon, huckster's shop, or other place erected, brought, kept, continued or maintained within the distance aforesaid." And it was held that a sale within the prohibited distance was no offense unless made at one of the specified places.3 Bills of non-existing bank — (Forgery).— A statute against passing bills" purporting to be" the bills" of a bank, company or association which never did in fact exist" is not infringed by fraudulently passing bills of a bank in fact existing, though unincorporated and illegal.‘ "Threatening" officer acting unauthorized-(Election frauds). One who resisted by threats a demand made upon his father, by the judges of an election, to answer questions they had no right to put, was held not to have committed the statutory offense of threatening an officer of the elections in the discharge of his duty; because the judges, in putting the questions, were not in the discharge of their duty." "Begin to destroy" - (Malicious mischief).- Under the English statute of 7 and 8 Geo. 4, ch. 30, § 8, against beginning to destroy any house ("shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy," etc.), one cannot be convicted unless he intended to proceed so far as to leave really no house." "Maintain owners no right of property."— Under a statute punishing "any free person who, by speaking or writing, shall 1 Com. v. Fourteen Hogs, 10 S. & R. 393. 2 Stat. 7 & 8 Geo. 4, ch. 29, § 38; Rex v. Hodges, Moody & M. 341. 3 Bouser v. S., Smith (Ind.), 408. See, as to the constitutionality of this sort of legislation, Fetter v. Wilt, 46 Pa. St. 457. Cahoon v. S., 8 Ohio, 537. 6 Reg. v. Adams, Car. & M. 299; Rex v. Price, 5 Car. & P. 510; Reg. v. Thomas, 4 Car. & P. 237. And see Reg. v. Howell, 9 Car. & P. 437; Reg. v. Phillips, 2 Moody, 252. For other cases requiring the intent, as well as the act, to come within the statute, see Com. v. Morse, 2 Mass. 128; P. v. Griffin, 2 Barb. 427. maintain that owners have not right of property in their slaves," a simple denial of the right was adjudged insufficient. The denial must be maintained, which means something more; and the right denied must be a legal, not simply a moral right.' But § 224. “Cut down"—"Destroy”—(Trees-Vessel).—This sort of doctrine will not be unreasonably extended. For example, it having been made by statute criminal to "unlawfully and maliciously cut down or otherwise destroy any trees," a total destruction was adjudged unnecessary. It was sufficient if the tree was "cut down," though the stump left could be grafted.2 So in the act of congress punishing with death those who destroy vessels, the word "destroy" has been held not to require an irreparable disruption of all the parts; it is generic in meaning, and includes "castaway." In legal contemplation, "to 'destroy a vessel' is to unfit her for service, beyond the hopes of recovery by ordinary means."3 Still, as many of the foregoing illustrations show, § 225. Fully done.- The act forbidden by a statute must be fully done in all its parts, else the offense is not complete;' though, indeed, there may be an indictable attempt. For example,― "Sell."—A statute made it criminal knowingly to sell "any free person for a slave." Thereupon one transferred to another the possession of a free negro, under a written agreement to be paid the price; with the proviso that the vendee should take him on trial for a month, and at the end thereof make the payment if he liked him, and receive a bill of sale. But before the month elapsed the negro ran away, and the court held that the offense was not committed, the sale not having been finished. So, 1 Bacon v. Com., 7 Grat. 602. Charretie, 13 Jur. 450, 18 Law J. 2 Rex v. Taylor, Russ. & Ry. 373. (N. S.) M. C. 100; Mayers v. S., 3 Eng. See ante, §§ 214, 223. 222; U. S. v. Twenty-eight Packages, U. S. v. Johns, 1 Wash. C. C. 363, Gilpin, 306. See Com. v. Hancock 372. Free Bridge, 2 Gray, 58. 4 Leonard v. Bosworth, 4 Conn. 421; Redman v. Sanders, 2 Dana, 68; U.S. v. Battiste, 2 Sumner, 240; Barefield v. S., 14 Ala. 603; P. v. Genung, 11 Wend. 18, [25 Am. D. 594;] Reg. v. 5 Ante, §§ 138, 140. 6 Com. v. Nix, 11 Leigh, 636. As to what acts constitute a sale, see post, §§ 1013-1015. "Persuading to enlist" — (Treason).- Where it was made criminal knowingly and willingly to "aid or assist any enemies, at open war with this state, by persuading others to enlist for that purpose," the offense was adjudged not complete until the person persuaded had actually enlisted. In like manner, "Administer poison"- ·(Attempt to murder).— A statute against administering poison with intent to murder is not vio lated until something more is done than a mere delivery of it from the party administering; though perhaps it need not be taken into the stomach. Again, "Coin resembling,” etc.— (Counterfeiting).— Under a statute against buying "any false or counterfeit coin, resembling, or apparently intended to resemble or pass for, any of the king's current gold or silver coin, at or for a lower rate or value than the same by its denomination imports," the offense is possible only where the counterfeits have been finished ready for circulation.3 1 Respublica v. Robert, 1 Dall. 39. ? Rex v. Cadman, 1 Moody, 114; Car. Crim. Law (3d ed.), 237. Carrington says the judges thought it necessary that the poison should be taken 244 into the stomach; Moody says they "seemed to think swallowing not es sential." See post, § 747. 3 Reg. v. Bradford, 2 Crawf. & Dix C. C. 41. |