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§ 465, 466. Introduction.

467–470. Making the civil wrong indictable

471-477. Felonious, purely or partly statutory. § 465. Elsewhere.- In the several chapters on homicide in “Criminal Law” and “Criminal Procedure,” I statutory homicides in general are explained in connection with those at the common law. Indeed, the old common law having simply

, drawn the bound between the indictable and unindictable taking of human life, the division into murder and manslaughter was made by statutes now worn into the common law and become parcel of it, and the later divisions into degrees are statutory; all of which are elucidated in those other connections. Something also is there said of the various changes in the bounds of indictable life-taking, created by statutes in a few of our states.

$ 466. Here, and how divided. We shall in this chapter simply add a few explanations and enlargements of the subject; as to, I. Statutes making the civil wrong indictable; II. Felonious homicides purely and partly statutory.

I. STATUTES MAKING THE Civil WRONG INDICTABLE. $ 467. In general.- In some of the states there are statutes which give to the surviving representatives of passengers and others killed by the negligence of railroad corporations an indictment for the recovery of a penalty. Thereupon its allegations must follow the rules of criminal pleading; as, for

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1 Crim. Law, II, 8 613 et seq.; Crim. R. 525; Com. v. Boston & Maine R. R. Pro., II, SS 495-663. And see the title Co., 133 Mass. 383. For United States “Dueling” in those volumes.

statute against negligence by steam2 Crim. Law, I, § 531, and cases boat captains and masters, see U. S. there cited; S. v. Maine Cent. R. R. v. Holtzbauer, 40 Fed. R. 76. And Co., 60 Me. 490; [S. v. Boston & Maine see Thomas v. P., 2 Colo. App. 513, 31 R. R. Co., 58 N. H. 410; S. v. Grand Pac. R. 349.] Trunk Ry. Co., 65 N. H. 663, 23 Atl.

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example, where by the statute the penalty goes to the “ widow" if no children, and to the children if no widow, if both to her and them equally,” it should aver that the deceased left a widow or heirs, or both, and state their names. But, if the penalty

? goes to the executor, those names need not be averred; his, must be. The names of the servants of the corporation are not required. As to the

$ 468. Procedure.- In other respects, and in general, where the law provides an indictment for the enforcement of a civil right, the procedure, as we saw in another connection, conforms rather to the common course in the civil than in the criminal department. So, therefore, it does in these cases;' as, for example,

$ 469. New trial.- Contrary to the course in the purely criminal law, new trials may be granted in cases of this class, very much on the principles which prevail in civil causes, to the government or plaintiff after the acquittal of the defendant, though the court may be more reluctant than in cases purely civil.

$ 470. “Passenger.” — Within these statutes, it was held by the majority of the court that, where a railway train passed, without fully stopping, the station to which a passenger was ticketed, and, while it was in motion, he got safely off, and in going to the depot was killed by another train approaching, he had ceased to be a "passenger," and so the corporation was relieved from criminal responsibility. This decision would be more clearly right if the cars had stopped, as they ought, at the station, or if the passenger had left them before arriving there, or if he had got off when he could not in safety. Under the facts, it violates a rule of our jurisprudence by permitting the


IS. v. Grand Trunk R. R. Co., 60 *Crim. Law, I, § 531. Me 145.

6 Crim. Law, I, § 993; Reg. v. Rus 2 Com. v. Boston, etc. R. R. Co., 11 sell, 3 Ellis & B. 942; 3 Russ. Crimes Cush. 512, 517, 518.

(5th Eng. ed.), 320; referring also to 3 Crim. Law, I, SS 33, 1074-1076. Reg. v. Chorley, 12 Q. B.515, and Reg. [See also Com. v. Coburn, 132 Mass. v. Leigh, 10 A. & E. 398; [S. v. Maine 555; Com. v. Boston & Maine R. R. Central R. R. Co., 77 Me. 244.] Co., 133 Mass. 383; Com. v. Boston & 6 Com. v. Boston, etc. R. R. Co., 129 Lowell R. R. Co., 134 Mass. 211; Com. Mass. 500, [37 Am. R. 382.) v. Brockton St. R. R. Co., 143 Mass. 501, 10 N. E. R. 506.]

corporation to set up its own wrong in excuse for the nonfulfillment of its undertaking to deliver the passenger at the depot.


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$ 471. Created by common-law name or description.Within a principle already explained,' if a statute simply makes indictable “murder,” or “manslaughter,” employing thus the common-law term, the offense it creates does not differ from murder or manslaughter at the common law. And the indictment for it is the same as at the common law, except in the conclusion "against the form of the statute.”; Nor is it otherwise, though the statute, instead of using the common-law name, describes the offense by its common-law definition. Again,

$ 472. Varying from common law.-- Where a statutory homicide varies in its bounds from the common-law offense, the judicious pleader, whose aim is accuracy, will bring his allegations within the statutory words. Yet as less than the best may be good, and the substance of the statutory language will suffice, the mere common-law forms will in this class of cases be sometimes adequate; because, within limits explained in “Criminal Procedure,” 6 an indictment on a statute departing from the statutory words may be tolerated. But the allegations of the common law will not be sufficient, nor do our constitutional guaranties permit the legislature to make them such, under every statute. This question will vary with the statute, and practically with differing opinions of judges. It would not be a judicious use of the limited space available in this volume to trace minutely the somewhat tortuous line of adjudications which the books reveal on this question; but the following, in brief, may assist one wishing to trace the line for himself. 1 Ante, $ 416.

38. v. Moses, Minor, 393; P. v. Mur2 S. v. Mullen, 14 La. An. 570; (S. v. ray, 10 Cal. 309; [Graves v. S., 45 N. J. McDonald, 14 Utah, 173, 46 Pac. R. L. 203; Brannigan v. P., 3 Utah, 488, 872; U. S. v. King, 34 Fed. R. 302.) 24 Pac. R. 767; S. v. Arnold, 107 N. C. 3 Crim. Pro., I, S 610.

861, 11 S. E. R. 990; Bird v. S., 18 Fla. + Sutcliffe v. S., 18 Ohio, 469, (61 493; 8. v. Fooks, 29 Kan. 425.) Am. D. 459.] And see Territory v. 6 Crim. Pro., I, SS 611, 612. Bannigan, 1 Dak. 451, [46 N. W. R. ? Conner v. Com., 13 Bush, 714. See 597; Dwyer v. S., 12 Tex. Ap. 535; Crim, Pro., II, SS 582, 583. Davis v. P., 151 U. S. 262, 14 S. Ct. 328, 38 L. ed. 153.]

$ 473. New York.- The Revised Statutes of New York defined murder and manslaughter in terms differing somewhat from those of the common law, and made four degrees of the latter. Later statutes added two degrees of the former. In the interval between these two legislative steps, it was held that an indictment for murder, drawn after the common-law model, and concluding against the form of the statute, was sufficient. And since it was divided into two degrees, the same form of the indictment has been adjudged adequate to sustain a conviction of murder in either the first or second degree. Now,

$ 474. As to which.-The latter doctrine, both as it prevails in New York and in some of the other states, is explained in "Criminal Procedure." The reader will there see that it

“ 5 is subversive both of the common-law rules of criminal pleading and of our constitutional guaranties, that the arguments against it were never even attempted to be answered by any judge or jurist who took the pains to understand them, and that it furnishes a wild and weird illustration of the confusion which comes from courts shutting their eyes and leaping in the dark after each other's ill-considered decisions. As to the former doctrine,- namely, that the allegations in common-law murder sufficiently charge murder under the Revised Statutes of New York,- it appears to be founded on the idea that the statute merely gives shape and form to the common law, or merely defines it; and so an averment within the terms of the one comes also within those of the other. Whether this conclusion is correct in principle or not will depend on a comparison, not proposed here to be made, of the statute and the common law, in connection with the rules of pleading on statutes. If we accept it as correct, it is not necessarily a guide under statutes differently expressed.

1 See Crim. Law, II, SS 720, 721. 5 Crim. Pro., II, SS 560–596. 2 Dolan v. P., 64 N. Y. 485.

6 P. v. Enoch, 13 Wend. 159, 27 Am. 3 P. v. Enoch, 13 Wend. 159, [27 D. 197, before cited; [P. v. Willett, Am. D. 197;] Lake v. P., 1 Park. Cr. 102 N. Y. 251, 6 N. E. R. 301; P. v. 495. See P. v. White, 24 Wend. 520. Osmond, 138 N. Y. 80, 33 N. E. R. 739;

4 Fitzgerrold v. P., 37 N. Y. 413, dis- P. v. Meyer, 162 N. Y. 357, 56 N. E. R. senting opinion by Bacon, J., 685; 758.] Kennedy v. P., 39 N. Y. 245; Keefe ? “The propriety of the decision v. P., 40 N. Y. 348. And see Dolan v. itself is not beyond question.” Paine, P., 64 N. Y. 485.

J., in S. v. Duval, 26 Wis. 415, 420.

$ 475. Ohio.- In Ohio, an indictment upon the statute for manslaughter, framed after the approved common-law prece. dents, is good, because the common law and the statute, in defining this offense, coincide. But they do not coincide in their definitions of murder. In the words of Bartley, C. J., “murder in Ohio is different from murder by the common law of England, not simply in the fact of the two degrees into which it is divided, but especially and most essentially in the fact that a purpose or intent to kill is made by the statute an essential and distinguishing feature in murder, both of the first and also of the second degree. It follows that an indictment for murder, under the statute of this state, must contain a direct averment of a purpose or intent to kill, in the description of the crime charged.” So that the common-law allegations of murder are not sufficient to set out the offense in either degree under the Ohio statutes.?

$ 476. Other states.— The doctrines thus brought to view, and illustrated by the statutes and decisions in New York and Ohio, have their applications also in some of the other states. Further as to which a mere reference to decisions will suffice.

§ 477. Statutory manslaughter — Degrees in manslaughter.- On these subjects we have some statutes and few adjudications. Therefore only a reference to cases will be given.'

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Sutcliffe v. S., 18 Ohio, 469, 51 Am. Smith v. S., 50 Conn. 193; P. v. De La D. 459.

Cour Soto, 63 Cal. 165; $. v. Sloan, 65 2 Fouts v. S., 8 Ohio St. 98, 111, 112; Wis. 647; Packer v. P., 8 Col. 361, 8 Hagan v. S., 10 Ohio St. 459; Kain v. Pac. R. 564; Leschi v. Terr., 1 Wash. S., 8 Ohio St. 306; Robbins v. S., 8 Terr. 13; Lewis v. S. (Fla.), 28 S. R. Ohio St. 131; Loeffner v. S., 10 Ohio 397.] St. 598. And see Wareham v. S., 25 4 U. S. v. Warner, 4 McLean, 463; Ohio St. 601, 606.

Thomas v. S., 38 Ga. 117; Walters v. 3 Cordell v. S., 22 Ind. 1; 8. v. Mur- Com.,44 Pa. St. 135; P.v. Butler, 3 Park. phy, 21 Ind. 441; Finn v. S., 5 Ind. Cr. 377; Reed v. S., 8 Ind. 200; Welch 400; Dukes v. S., 11 Ind. 557, [71 Am. v. S., 50 Ga. 128, [15 Am. R. 690;] D. 370;] Conner v. Com., 13 Bush, 714; Bruner v. S., 58 Ind. 159; (Williams U. S. v. Warner, 4 McLean, 463; S. v. v. S. (Tex. Cr. R.), 54 S. W. R. 759; P. Duvall, 26 Wis. 415; Perry v. S., 44 v. Willett, 102 N. Y. 251, 6 N. E. R. Tex. 473; P. v. Dolan, 9 Cal. 576; P. 301; P. v. Buddensieck, 103 N. Y. 487, v. Wallace, 9 Cal. 30; P. v. Coleman, 9 N. E. R. 44, 57 Am. R. 766; P. v. 10 Cal. 334; S. v. Feaster, 25 Mo. 324; Giblin, 115 N. Y. 196, 21 N. E. R. 1062, Jordan v. S., 22 Ga. 545; [P. v. McAr- 4 L. R. A. 757; P. v. Constantino, 153 row (Mich.), 79 N. W. R. 944; Kibler N. Y. 24, 47 N. E. R. 37; P. v. Maine, v. Com., 94 Va. 804, 26 S. E. R. 858; S. 64 N. Y. S. 579.] v. Ellington (Idaho), 43 Pac. R. 60;

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