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the word “conviction,” in a statute, is very easily extended by the context or the subject to denote also the final judgment." Where the proceeding is civil in form, for the recovery of a fine, there cannot be what in law is called a conviction. It has likewise some other significations; according to one of which, "a conviction is defined to be a record of the summary proceedings upon any penal statute, before one or more justices of the peace, or other persons duly authorized, in a case where the offender has been convicted and sentenced.”

$ 349. Term of years. This expression, in a statute providing the punishment, has been defined to mean not less than two years; and, on the other hand, to include a sentence for life.

$ 350. Action. The word “action," familiarly used to denote a civil suit at law, is sometimes applied, and properly, to a criminal suit. Also it may,' but does not necessarily,' include a suit in equity.

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tion, in the mode prescribed by law, Ex parte Seymour, 14 Pick. 40. which mode, most generally, is a ver- [“Term,” in N. Y. city charter of dict of a jury on a plea of not guilty.” 1873. P. v. McClave, 99 N. Y. 83, 1 N. Blair v. Com., supra, at p. 857. (See E R. 235.] S. v. Hastings, 37 Neb. 96, 55 N. W. $ Com. v. Evans, 16 Pick. 448. R. 774.]

6 [Tichenor v. Collins, 45 N. J. L. 24.] 1 Dwar. Stat. (2d ed.) 683; Keith- 7 Co. Lit. 2810; 2 Inst. 40; S. v. Carr, ler v. S., 10 Sm. & M. 192; Com, v. 6 Oreg. 133. Gorham, 90 Mass. 420; Faunce v. P., 8 Coatsworth v. Barr, 11 Mich. 199; 51 IIL 311.

Kramer v. Rebman, 9 Iowa. 114; 28. v. White, 13 La. An. 573. [Fenstermacher v. S., 19 Oreg. 504, 25

8 Holthouse, Law Dict., Conviction. Pac. R. 142.] And see Hartley v. Hindmarsh, Law . Ex parte Hewitt, 40 Ala 300; R. 1 C. P. 553; Rey. v. Hyde, 7 Ellis & (Hamp t. Ossett Corporation, [1898] B. 860. ["Imprisonment." Haynes v. 1 Ch. 525; Moore v. Norwell, 94 N. C. U. S., 101 Fed. R. 817.]

265.] 864

BOOK IV.

THE PROCEDURE ON WRITTEN LAWS.

CHAPTER XXVIII.

WHAT HAS BEEN ALREADY EXPLAINED.

$ 351. Written and unwritten, one system.- In the foregoing discussions of this volume, we have seen that the written and unwritten laws are interpreted together into one system, and we have had numerous illustrations of the doctrine. Hence,

§ 352. Procedure follows like rules.- In the main, the procedure on a written law is the same as on the unwritten. So that the expositions of it in “Criminal Procedure," and elsewhere in this series of works, are, even when they are primarily on the common law, necessarily expositions of the same on statutes. Moreover,

$ 353, Indictments on statutes. The doctrine of indictments on statutes is especially set forth in a chapter in “ Criminal Procedure.”? And

" 2 $ 354. Mingling with common-law expositions. Throughout the discussions in this series of works, the procedure on the statutes, and the variations of the common-law procedure which statutes have created, are kept in view and laid before the reader with the rest. So that, in one way or another, the entire doctrine has been explained, except as to the —

$ 355. Topic of next chapter.— Though seldom are judicial steps on a private statute necessary, and legislation has in most of our states greatly simplified the procedure on municipal by-laws, something of these subjects is important to be known by practitioners, and the explanations will be given in the next chapter.

1 Ante, SS 86–90, 1136–121, and numerous other places
2 Crim. Pro., I, SS 593-642.

CHAPTER XXIX.

PROCEEDINGS ON PRIVATE STATUTES AND MUNICIPAL BY.

LAWS.

$ 394. Introduction.
395–402. Indictment on private statutes.
403-408. Procedure on municipal by-law.

$ 394. How chapter divided. We shall consider, I. The indictment on private statutes; II. The procedure upon municipal by-laws.

I. THE INDIOTMENT ON PRIVATE STATUTES.

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$ 395. Not recite public statute.- We have seen elsewhere that an indictment on a public statute need not recite the statute;o though, if it does, the recitation should be correct, else it may in some circumstances be pronounced ill. But,

$ 396, Recite private statute.- Since the courts do not take judicial notice of private statutes,““ the parts," says Chitty, “of a private act upon which an indictment is framed must be set out specially, the same as other facts; and a variance, if

1$$ 356–393 omitted from this edi. 4 Ante, $ 37; Hailes v. S., 9 Tex. Ap. tion.

170; Toledo, etc. R. R. Co. v. Nordyke, 2 Crim. Pro., I, § 608; Wright v. 27 Ind. 95; Perry v. New Orleans, etc. Gerrard, Hob. 306, 310; Crawford v. R. R. Co., 55 Ala. 413, [28 Am. R. 740; Planters', etc. Bank, 6 Ala. 289; S. Town of Durham v. North Carolina v. Cobb, 1 Dev. & Bat. 115; (Clark v. R. R. Co., 108 N. C. 399, 12 S. E. R. Village of North Muskegon, 88 Mich. 1040; Denver & Rio Grande R. R. Co. 308, 50 N. W. R. 254; City of Coving. v. U. S., 9 N. M. 389, 54 Pac. R. 336; ton v. Hoadley, 83 Ky. 444; S. v. City of Mobile v. Louisville & NashCooper, 101 N. C. 684, 8 S. E. R. 134.] ville R. R. Co. (Ala.), 26 S. R. 902;

3 Id.; Say v. Stephens, Cro. Car. Workingmen's Bank v. Converse, 33 135; Platt v. Hill, 1 Ld. Raym. 381, La. An. 963.] 382; Boyce v. Whitaker, 1 Doug. 93a; 61 Chit. Crim. Law, 276–281; Crim. Palgrave v. Windham, 1 Stra. 212, Pro., I, 8 609. 214; Rex v. Marsack, 6 T. R. 771; 6 The American annotator refers Vander Plunken v. Griffith, Cro. here to Goshen, etc. Turnpike v. Eliz. 236; Farr v. East, Cro. Eliz. 186; Sears, 7 Conn. 86, 92; 1 Stark. Ev, Whitton v. Marine, 1 Dy. 95a; Wal- (5th Am. ed.) 197, notes; 8. v. Cobb, grave's Case, 2 Dy. 203a; Pelles v. 1 Dev. & Bat. 115; Cochran v. CouSaunderson, 2 Dy. 1706, 171a; Rex v. per, 1 Harr. (DeL) 200. Hill, Cro. Car. 232, 233.

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properly shown to the court, will be fatal.' But the error must be properly shown to the court by the defendant, for they will presume the statute, of which they cannot ex officio take notice, to be correctly recited.?

$ 397. Recital of date.- “It is in no case necessary to set forth the day on which the statute was enacted. And, therefore, it is better altogether to omit it;: for a mistake in this respect will frequently prove fatal,- though under various circumstances it will not."

$ 398. Repugnancy in recital of date.—“A repugnancy in setting forth the time when the parliament was holden as, if a statute be recited to have been made in the first and second year of the king — will vitiate the proceedings under it.” 6 And it is the same of a date which could not have been true.?

$ 399, Title and preamble.—“The title and preamble of the act need not in any case be recited, for they form no part of the law.” 10 It would seem to follow that a misrecital of

a either of these will do no harm, but on this question opinions differ. 11

$ 400. Accuracy in recital of purview.- As to the recital of the purview, Chitty continues, mingling the doctrine of public statutes with that of private: "If any material part be omitted or misrecited, the indictment will be bad, because it will, in the case of a public act, judicially appear to the court that the charge is professedly grounded upon a vicious foundation.12

It seems to be a general and established rule

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11 Sid. 356; 2 Hale, P. C., 172; 2 ch. 25, $ 104; Bac. Abr., Ind. H. 2. Hawk. P. C., ch. 25, § 103; Bac. Abr., And see Birt v. Rothwell, 1 Ld. Raym. Ind. H. 2; Burn Just., Ind. IX. 210, 243.

2 2 Hawk. P. C., ch. 25, S 103; Bac. 7 Rann v. Green, Cowp. 474. And Abr., Ind. H. 2; Burn Just., Ind. IX; see East v. Wilson, Cro. Eliz. 106. 1 Chit. PL (4th ed.) 197. See post, 8 Ante, SS 44-47. $ 401.

9 Ante, SS 48–51. 3 Walgrave's Case, 2 Dy. 203a; 2 10 Eckert v. Head, 1 Mo. 593. Hawk. P. C., ch. 25, $ 104; Bac. Abr., 11 Shaftsbury v. Digby, 3 Keb. 647, Ind. H. 2.

648, T. Jones, 49, 51; Mills v. Wilkins, * Ford v. Hunter, Cro. Jac. 111; Holt, 662, 6 Mod. 62, 2 Salk. 609, 3 Anonymous, Skin. 110, 111; 2 Hawk. Salk. 331; The Nancy v. Fitzpatrick, P. C., ch. 25, $ 104

3 Caines, 38, 41; P. v. Walbridge, 6 5 Read v. Potter, Cro. Jac. 138; Oli- Cow. 512; 2 Hawk. P. C., ch. 25, § 107. ver v. Collins, Yelv. 126, 127; Owen 12 Cromwell's Case, 4 Co. 126, 13; v. Evans, 2 Keb. 34.

Hall v. Gaven, Cro. Eliz. 307; Rex v. 6 Sir F. Moore, 302; 2 Hawk. P. C., Green, 1 Vent. 171, 172; Boyce u

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that a variance which does not alter the sense of a material part of the statute will not vitiate.?

For the present rule seems to be that, if the variance consists in the introduction or alteration of words purely superfluous and unnecessary, it will not be material, unless indeed the alteration rendered the whole repugnant to the intent of the statute; for then the superfluous words cannot be rejected.?

$ 401. Continued.--" If any defect arise in the recital of a public statute, which there was no occasion to set out, and the indictment would be good without it, if the indictment conclude generally contrary to the form of the statute in such case made and provided,' the recital may be rejected as surplusage, and judgment may be given against the defend. ant; but, if it be referred to as the said statute, the proceedings will be altogether defective.: As it is necessary to recite pri vate statutes, the same rule will not apply to them, and the omission of the word 'said' cannot aid them. And yet in one respect it is more dangerous to misrecite a public than a private statute; for, in the former case, the court, being bound ex officio to take cognizance of all public laws, will of themselves notice the variance, whereas in the latter it must be specially pleaded or given in evidence under a plea of nul tiel record, for the court will presume the recital to be correct until the contrary is formally shown.”+ Here the learned author appears to have fallen into the mistake of applying to the indictment an inapplicable rule of civil pleadings. On principle, where the prosecutor relies on a private statute, he must prove it at the trial, like any other averred fact; and, should there be a variance between the allegation and proof, there can be no conviction.

$ 402. Modifications of doctrine.-The doctrines of the foregoing sections are directly or indirectly modified or superseded Whitaker, 1 Doug. 93a, 97; Palgrave well's Case, 4 Co. 12, 13; Goodwin v. v. Windham, 1 Stra. 212, 214; Platt West, Cro. Car. 522, 523. v. Hill, 1 Ld. Raym. 381, 382; Eden's 3 Ante, $ 395; Boyce v. Whitaker, 1 Case, Cro. Eliz. 697; 2 Hawk. P. C., Doug. 93a, 94; Fost. 372; Palgrave v. ch. 25, S 101; Bac. Abr., Ind. H. 2. Windham, 1 Stra. 212, 214; Platt v.

1 The American editor refers here Hill, 1 Ld. Raym. 381, 382; Rex v. to The Nancy v. Fitzpatrick, 3 Caines Hill, Cro. Car, 232, 233; 2 Hale, P. C. Cas. 38.

172, 173; 2 Hawk. P. C., ch. 25, $ 104. 22 Hawk. P. C., ch. 25, 8 109; Crom- 4 Platt v. Hill, 1 Ld. Raym. 381, 382;

Rex v. Wilde, 1 Doug. 97, in note.

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