Imágenes de páginas

terruption by falls does not prevent a river being navigable above.

$ 304. High seas.- In England, for giving jurisdiction to the central criminal court under 4 and 5 Will. 4, ch. 36, § 22, wherein, to the words “high seas," are added “and other places within the jurisdiction of the admiralty of England," a British vessel off Whampoa in China, stated in the case to be twenty or thirty miles from the sea on a river, and no evidence appearing whether or not the tide flowed there, was held to be covered by the statute.? Our own courts have had occasion to consider the meaning of the term “high seas” standing in somewhat different relations. It includes, under our national legislation, waters of our own and foreign coasts within the marine league of the shore, and therefore parts of the adjoining territory, when without the boundaries of counties; but not, on our own coast, when within such boundaries.: Nor does it extend to our great lakes. With us, an American vessel off the before-mentioned Whampoa, said in the case to be on the river Tigris thirty-five miles from its mouth, was adjudged not to be on the high seas." It is otherwise with one lying in a harbor, fastened by cables to the shore, and communicating by her boats with the land, yet not within any inclosed dock, or at any pier or wharf. Waters of a bay entirely landlocked and inclosed by reefs, and an inclosed dock in a foreign port, are respectively deemed not of the high seas. “The admiralty,” said Story, J., “has never held that the waters of havens, where the tide ebbs and flows, are properly the high seas, unless those waters are without low-water mark.” 8 But an open roadstead is such.' And

8. v. Wabash Paper Co., 21 Ind. Ap. U. S. v. Smith, 1 Mason, 147; U. S. v. 167, 51 N. E. R. 949. The Rio Grande Ross, 1 Gallis. 624; U. S. v. Grush, 5 is not navigable in New Mexico. Mason, 290; Johnson v. Merchandise, U. S. v. Rio Grande Dam & Irriga. 2 Paine, 601. tion Co., 174 U. S. 690, 19 S. Ct. 770, 4 Miller's Case, 1 Brown, Adm. 156. 43 L. ed. 1136.]

GU. S. v. Wiltberger, 5 Wheat. 76. 1 Spooner v. McConnell, 1 McLean, 6 U. S. v. Seagrist, 4 Blatch. 420. 337; [In re State Reservation Com’rs, ? U. 8. v. Robinson, 4 Mason, 307. 37 Hun, 537.)

8 U. S. v. Hamilton, 1 Mason, 152. 2 Rex v. Allen, 7 Car. & P. 664, 1 9U. S. v. Pirates, 5 Wheat. 184, 200: Moody, 494. See also Rex v. Depardo, U. S. v. Ross, 1 Gallis. 624. See U. S. 1 Taunt. 26.

v. Davis, 2 Sumner, 482. 3 U. S. v. Pirates, 5 Wheat. 184, 200;

Sea. There appears to be a sense in which, relating to other questions than those now in contemplation, the word “sea” comprehends all waters extending inland as far as the tide flows, 1

§ 305. Sea-shore.— The “sea-shore” is, in the words of Parsons, C. J., "all the ground between the ordinary high-water mark and low-water mark.” ?



$ 306. Utter - Uttering.- To “utter" is a verb of common use in the law of crimes, particularly in forgery, counterfeiting, and the like. It means to offer by some overt act; as, one who thus offers another a forged instrument or a piece of counterfeit coin, intending it shall be received as good, utters it, whether accepted or not. The offer, it is said, need not proceed to a tender. Hence the word "utter" is far from being the equivalent of “pass.” 5

But there must be a complete attempt to do the specific forbidden thing, though there may be

[ocr errors]

i Thackarey v. The Farmer, Gilpin, $ Crim. Law, I, SS 359, 437, 765; 524, 1 Curt. Com., S 38.

II, SS 286, 288, 605-608; Crim. Pro., Beyond seas.-- For“ beyond seas," II, SS 259i, 261, 263, 271, 425, 426, 442, see ante, § 2616;-Campbell v. Rank- 447, 452, 453, 460, 482. ins, 2 Fairf. 103; Mason v. Johnson, 4 Reg. v. Welch, 2 Den. C. C. 78, 1 24 Ill. 159, [76 Am. D. 740; Brown v. Eng. L & Eq. 588, 15 Jur. 136; S. C. Heard, 85 Me. 294, 27 Atl. R. 182; nom. Reg. v. Welsh, Temp. & M. 409; Wright v. Seymour, 69 Cal. 122, 10 Rex v. Arscott, 6 Car. & P. 408; Reg. Pac. R. 323.]

v. Ion, 2 Den. C. C. 475, 14 Eng. L. & 2 Storer v. Freeman, 6 Mass. 435, 439, Eq. 556; Reg. v. Radford, 1 Car. & K. [4 Am. D. 155.] 3 Kent, Com. 431. And 707, 1 Den. C. C. 59; Rex v. Martin, 1 see Com. v. Charlestown, 1 Pick, 180, Moody, 483, 7 Car. & P. 519; U. S. v. 182, [11 Am. D. 161.]

Mitchell, Bald. 366; P. v. Brigham, 2 Beach.—“By a beach is to be un- Mich. 550. Said Tilghman, C. J., in derstood the shore or strand.” Wes- Com. v. Searle, 2 Binn. 332, 339, [4 Am. ton, C. J., in Cutts v. Hussey, 15 Me. D. 446,] “ to utter and publish is to 237, 241; S. P., East Hampton v. Kirk, 6 declare or assert, directly or indiHun, 257. Yet it is said to have no such rectly, by words or actions. that a inflexible meaning as necessarily to note is good. To offer in payment denote the land between high and would be an uttering or publishing; low-water mark. Merwin v. Wheeler, but it is not passed until it is received 41 Conn. 14; [Snow v. Mt. Desert Isl. by the person to whom it is offered.” and R. E. Co., 84 Me. 14, 24 Atl. R. 429, See, however, Rex v. Shukard, Russ. 30 Am. St. R. 331, 17 L. R. A. 280; & Ry. 200. Litchfield v. Scituate, 136 Mass. 39; 5 P. v. Tomlinson, 35 Cal. 503. See Stillman v. Burfund, 47 N. Y. S. 280, U. S. v. Nelson, 1 Abb. (U. S.) 135. 21 Ap. Div. 13.]

6 See and compare Reg. u Lough.

a conditional uttering, as well as any other, which will be criminal. One utters a threatening letter who puts it where the person addressed will be likely to see and read it, or another to find it, and it is found and conveyed to such person.? So to place on record a forged deed of land is to utter the deed.'

In what county (A nalogous to attempt). — The majority of the English judges held that one who gave his innocent servant forged stamps, to be transmitted by him to another person in another county, might be treated as having uttered them where he thus passed them out of his manual possession. As this delivery to the servant, who, in these circumstances, was the innocent agents of the master, could have no greater effect than the putting of them into a letter-box properly addressed, this case, if sound, shows how absolutely the doctrine of uttering is within that of attempt.

$ 307. Put off.? — The words “pay or put off,” in a statute, are not satisfied by a mere uttering or by a tender; there must be an acceptance. One who had bargained away and counted out counterfeit coin, but the transfer was not complete when he was arrested, was held not to have put off the coin.8

$ 308. Passing - a thing of real or assumed value is putting it off in payment or exchange. More than an offer is meant, it must be received." But a concurrent agreement to take it back should it not prove good will not prevent the act from

ran, 3 Crawf. & Dix C. C. 333; Rex palla v. S., 108 Ala. 38, 19 S. R. 82; P. v. Collicott, Russ. & Ry. 212, 4 Taunt. v. Swetland, 77 Mich, 53, 43 N. W. R. 300; Reg. v. Heywood, 2 Car. & K. 779; P. v. Baker, 100 Cal. 188, 34 Pac. 352; S. v. Beeler, 1 Brev. 482; (Reg. v. R. 649, 38 Am. St. R. 276; Preston v. Colclough, 15 Cox, C. C. 92; Lockard S. (Tex. Cr. R.), 48 S. W. R. 581.] V. Com., 87 Ky. 201, 8 S. W. R. 266; 4 Rex v. Collicott, Russ. & Ry. 212, Thurmond v. S., 25 Tex. Ap. 366, 8 S. 4 Taunt. 300. W. R. 473; Smith v. S., 20 Neb. 284, 5 Crim. Law, I, SS 310, 651. 29 N. W. R. 923, 57 Am. R. 832; S. v. 6 Crim. Pro., I, SS 53, 61. Calkins, 73 Iowa, 128, 34 N. W. R. 777; 7 See Crim. Law, II, SS 288, 608. S. v. Sherwood, 90 Iowa, 550, 58 N. W. 8 Rex v. Wooldridge, 1 Leach, 307, R. 911, 48 Am. St. R. 461.)

1 East, P. C. 179. And see Rex v. 1 Reg. v. Cooke, 8 Car. & P. 582; Giles, 1 Moody, 166; Rex v. Palmer, Rex v. Birkett, Russ. & Ry. 86. Russ. & Ry. 72, 1 New R. 96, 2 Leach,

2 Reg. v. Jones, 5 Cox, C. C. 226. See 978. Crim. Law, II, & 1200; (Reg. v. Fin. 9 U. S. v. Mitchell, Bald. 366; U. S. kelstein, 16 Cox, C. C. 107.]

v. Nelson, 1 Abb. (U. S.) 135. 3 U. S. v. Brooks, 3 McAr. 315; (Es- Ante, S 306, note.


constituting a passing. A mere pledge was by the majority of the Tennessee judges held not to be adequate. Yet how, in principle, does the “passing” of a thing in pledge differ from the like in conditional payment ?

$ 309. Show forth in evidence. These words, in a statute, refer to a judicial proceeding, wherein the thing shown forth is offered in evidence. They are not, therefore, an equivalent for “utter” or “publish.

$310. Burn-Burning. The word “burn" enters into the definition of arson at the common law; and it occurs in many statutes. It means to consume by fire. To blacken the wood without wasting any of the fibres is not to burn it, yet there need be no blaze. And the burning of any part, however small, completes the offense, the same as of the whole. Thus, to char the floor in a single place, so as to destroy any of the fibres of the wood, is a sufficient burning in arson.?

$ 311. Set fire to.- As the wasting of any particles of the wood, to however small an extent, constitutes a burning, and as the setting of fire thereto without such wasting is a physical impossibility, there can be no wide difference between the terms “ burn” and “set fire to." And in the books they are gener

" ally regarded as substantially or absolutely synonymous. To constitute the setting of fire to a building there need not be a flame visible, yet there must be some consumption of the wood,10 — the precise description of the meaning of the word burn. Yet it does not necessarily follow, that, where the in

14 Perdue v. S., 2 Humph. 494. Simpson, 50 Cal. 304; [Woolsey v. S., 2 Gentry v. S., 3 Yerg. 451.

30 Tex. Ap. 346, 17 S. W. R. 546.] 3 S. v. Britt, 3 Dev. 122; 8. v. Stan- 6 Com. v. Van Shaack, 16 Mass. ton, 1 Ire. 424.

105; S. v. Mitchell, 5 Ire. 350; (Smith Having in possession. — As to v. S., 23 Tex. Ap. 357, 5 S. W. R. 219, “ having in possession," see Com. v. 59 Am. R. 773.] Whitmarsh, 4 Pick. 233; Com. v. 7 Reg. v. Parker, supra; S. v. Sandy, Morse, 2 Mass. 128; Rex v. Rowley, 3 Ire. 570; Com. v. Betton, 5 Cush. 427; Russ. & Ry. 110. (See Webb v. S. P. v. Cotteral, 18 Johns. 115; P. v. (Tex. Cr. R.), 44 S. W. R. 498.]

Butler, 16 Johns. 203; [Blanchette v. 4 Crim. Law, I, § 559; II, SS 8, 17; S. (Tex. Cr. R.), 24 S. W. R. 507.] Crim. Pro., II, SS 46, 47.

82 East, P. C. 1020; Com. v. Van 5 Crim. Law, 11, § 10; Com. v. Tucker, Shaack, 16 Mass. 105; S. v. Babcock, 110 Mass. 403; Reg. v. Russell, Car. & 51 Vt. 570; Lockett v. S., 63 Ala. 5. M. 541; Reg. v. Parker, 9 Car. & P. 45; 9 Rex v. Stallion, 1 Moody, 398. Rex v. Stallion, 1 Moody, 398; P. v. 10 Rex v. Taylor, 1 Leach, 49, 2 East,

P. C. 1020.

dictment is on a statute the word wherein is “burn," it may employ the substantially synonymous term “set fire to.” On this question judicial opinion is divided. So also a difference

? may be wrought by varying the expression; as, in Vermont, where the statutory words are “wilfully and maliciously set fire, with intent to burn, to the dwelling-house of another.” And they are held not to require any consumption of the wood of the building. The English doctrine was admitted to be otherwise; but said the court: “Our statute contains the important qualifying words, with intent to burn,' which are not contained in any of the English statutes; most clearly implying that the offense intended to be covered by the statute was something short of an actual burning.” The expression may “reasonably and fairly be understood the same as put fire to, or place fire upon, or against, or put fire in connection with.Thus the language and intent of the enactment are brought into harmony.

§ 312. Break — Breaking.* — The verb “to break” occurs in various connections in our legal language. But its chief use, whence mainly we derive its meanings, is in the law of burglary and the analogous statutory breakings. Applied to a building, it signifies to make an opening, or way of admission, into it, and it does not necessarily require any destruction of parts. It is a breaking, for example, to lift the latch or draw the bolt of a door not otherwise fastened,' to push upward or lower a window

[ocr errors]
[ocr errors]

1 Crim. Pro., I, § 612.

D. 216;] Curtis v. Hubbard, 1 Hill ? Id., & 613; II, § 47; S. v. Taylor, 45 (N. Y.), 336, 4 Hill (N. Y.), 437, [40 Me. 322; Howe v. Com., 5 Grat. 664; Am. D. 292;] Bass v. S., 1 Lea, 444; Mary v. S., 24 Ark. 44, 47, [81 Am. D. McCourt v. P., 64 N. Y. 583; Rex v. 60;} Cochrane v. S., 6 Md. 400, 405; Robinson, 1 Moody, 327; S. v. Rob(S. v. Hall, 93 N. C. 571.)

ertson, 32 Tex. 159; Owen's Case, 1 3S. v. Dennin, 32 Vt. 158, 164, 165. Lewin, 35. And see S. v. Newbegin, * Crim. Law, II, § 91.

25 Me. 500; Rex v. Bailey, 1 Moody, 5 As, in the law of arrest, ante, 23; Lowder v. S., 63 Ala. 143, [35 Am. S 277, 290; Crim. Pro., I, SS 194–204; R. 9;] ante, & 290; (S. v. Hecox, 83 and prison-breach. Crim. Law, II, Mo. 531; S. v. Woods, 137 Mo. 6, 38 S. SS 1070-1083. And see Ryan v. Shil. W. R. 722; S. v. Moore, 117 Mo. 395, cock, 7 Exch. 72; Samanni v. Com., 22 S. W. R. 1086; S. v. O'Brien, 81 16 Grat. 543.

Iowa, 93, 46 N. W. R. 861; S. v. Gron6 Crim. Law, I, § 559; II, SS 90, 91, ing, 33 Kan. 18, 5 Pac. R. 446; Kent 118 and note.

v. S., 84 Ga. 438, 11 S. E. R. 355, 20 7 J. Kel. 67; Rex v. Gray, 1 Stra. Am. St. R. 376; Daniels v. S., 78 Ga. 481; Reg. v. Wheeldon, 8 Car. & P. 98; Webb v. Com. (Ky.), 35 S. W. R. 747; S. v. Wilson, Coxe, 439, [1 Am. 1038; Ferguson v. S., 52 Neb. 432, 72

[ocr errors]
« AnteriorContinuar »