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no common-law crimes it is not so indictable; and, in the absence of a statute to meet the case, the offender must escape.'

Beale, Law R. 1 C. C. 10; Reg. v. Ry. R. 61; Dockery v. S., 35 Tex. Cr. R. land, 11 Cox, C. C. 101. [As to dis. 487, 34 S. W. R. 281; S. v. Smith, 9 tinctions between attempt and as Houst. 588, 33 Atl. R. 441. See also sault with intent, see Taylor v. S., 22 Brown v. S., 27 Tex. Ap. 330, 11 S. W. Tex. Ap. 529, 3 S. W. R. 753, 58 Am. R. 412; Jenkins v. S., 34 Tex. Cr. R. R. 656; Milton v. S., 23 Tex. Ap. 204, 201, 29 S. W. R. 1078.] 4 S. W. R. 574; McAdoo v. S., 35 Tex. 1 Smith v. S., 12 Ohio St. 466, [80 Am. Cr. R. 603, 34 S. W. R. 955, 60 Am St. D. 355.]




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$ 500. In general.-- Under statutes in most of our states, the assault or battery which they create or define does not differ from the same at the common law. And then plainly enough the indictment is good which follows the common-law form, except in concluding against the statute. But,

$ 501. Statutes differing from common law. In two or three of our states, and perhaps more, there are statutes considerably departing from the common-law definitions of these offenses. Thus,

$ 512. Indiana.- In Indiana," an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another," etc.? “Every person who in a rude, insolent or angry manner shall unlawfully touch another shall be deemed guilty of an assault and battery," etc. Here the departures from the common law are considerable. For example, under the common law, any unlawful touching of one against his will and with intent to injure constitutes a battery;' but not so under this statute. The statutory battery occurs only where the touching is rude, or is insolent, or is angry. Again, the present ability to inflict an injury is not necessary to an assault at the common law, but it is indispensable in this statutory assault. Therefore

$ 513. Indictment in Indiana. The courts of this state hold the common-law form of the indictment to be inadequate under this statute. “Since the legislature,” said Downey, J.,


18S 502–511 omitted from this edi. 6 S. v. Wright, supra; Howard v. tion.

S., 67 Ind. 401; Slusser v. S., 71 Ind. 2 Act of Dec. 2, 1865, 3 Ind. St. 258; 280. S. v. Hubbs, 58 Ind. 415.

6 Crim. Law, II, S 32. 3 2 Gav. & H. 459, 8 7; S. v. Wright, ? Howard v. S., supra; Cutler v. S., 52 Ind. 307. Compare these defini- 59 Ind. 300. (See also S. v. Godfrey, tions with Crim. Law, II, § 23 and 17 Oreg. 300, 20 Pac. R. 625, 11 Am. note, $ 70.

St. R. 830; Thomas v. S., 99 Ga. 38, 26. * Crim. Law, II, S 72.

S. E. R. 748.]

“has furnished a definition of an assault, and thus placed it in the same category with other defined offenses, we must apply, in prosecutions for that offense, the same rule which is applied to prosecutions for other offenses; that is, that the offense must be described according to its statutory definition by stating all the facts necessary to show that the act is in violation of the statute.”1 For example, the present ability must be alleged.? And a battery must be averred to have been rude, or insolent, or angry,- a part of the statute which cannot be omitted. In general, it will suffice to follow simply the statutory terms. Now,

514. On principle,– this Indiana doctrine as to the allegation would seem just in a state into whose jurisprudence the common law did not enter as an element. But the common law has made it a sufficient allegation of the act in this offense, that, as to the assault, the defendant “did make an assault” on a person named; and, as to the battery, "did beat, wound and ill-treat” him. This form of the allegation, dispensing with the particulars and not following a definition, the common law has, to repeat, made adequate. And there is in principle no different or greater reason why the allegation should be required to pursue the terms of this statutory definition, where the offense is under it, than the terms of the commonlaw definition where the offense is at common law. To

say that the defendant “did make an assault” would mean that he did what the law deems to be such; and, even under the common law, the allegation would differ in its meaning in our different states according to the varying opinions of the tribunals. In Indiana it would signify an assault as defined by the statute under the interpretation of the courts. And this kind of doctrine pervades our American procedure. Where the common law requires the indictment to follow a definition,

1 Adell v. S., 34 Ind. 543, 545, 546. 533, 41 Am. St. R. 408, 20 L R. A.

28. v. Hubbs, 58 Ind. 415, 416; How- 863.] ard v. S., 67 Ind. 401.

4 Malone v. 8., 14 Ind. 219; 8. v. 38. v. Wright, 52 Ind. 307; McCul. Bougher, 3 Blackf. 307. And see ley v. S., 62 Ind. 428; Slusser v. S., 71 Long v. S., 46 Ind. 582; S. v. Prather, Ind. 280; Knight v. S., 84 Ind. 73; 54 Ind. 63; [S. v. Kinder, 109 Ind. 226, Parker v. S., 118 Ind. 328, 20 N. E. R. 9 N. E. R. 917.] 833; Carr v. S., 135 Ind 1, 84 N. E. R. 5 Crim. Pro., II, SS 55, 56.

or otherwise specifically set out the act, the question is of another sort,- already considered."

$ 515. In Texas,– there is a similar statute. By it, the ability to commit a battery was once, as in Indiana, an element in assault;' but it has been eliminated by a subsequent revision. The author has not observed that the Indiana form of the indictment has been required;' and indeed the commonla w form appears to have been adjudged sufficient. It is not deemed important to enter further into the particulars of this enactment.

1 Ante, & 471 et seq.

lain v. S., 2 Tex. Ap. 451; Bingham v. 2 McKay v. S., 44 Tex. 43; Jarnigan S., 6 Tex. Ap. 169; Hudson v. S., 6 Tex. V. S., 6 Tex. Ap. 465; Spears v. S., 2 Ap. 565, 32 Am. R. 593; Lewallen v. Tex. Ap. 244.

S., 6 Tex. Ap. 475; Young v. S., 7 Tex. • Kief v. 8., 10 Tex Ap. 286. See Ap. 75; Cato v. S., 4 Tex. Ap. 87; McGann v. S. (Tex. Cr. R.), 40 & W. R. Gregor v. S., 4 Tex Ap. 599; Schen725.

ault v. S., 10 Tex. Ap. 410; Bowden • Atkins v. S., 11 Tex. Ap. 8, 12; Mo v. S., 2 Tex. Ap. 56. (See S. v. Cox, 43 Gee v. S., 5 Tex. Ap. 492.

Mo. Ap. 328; Wagner v. S., 43 Neb. 1, 58. v. Hartman, 41 Tex. 562. 61 N. W. R. 85; &. v. Harris, 120 N.

6 Johnson v. S., 43 Tex. 576; Don. C. 577, 26 & E R. 744.] aldson v. 8., 10 Tex Ap. 807; Chamber


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$ 577. Name of offense — (Bigamy polygamy).— The offense now to be treated of, consisting of a formal entering into of a marriage while a former one remains undissolved, is by some termed bigamy. In the canon law a bigamist was one who married a second time, whether the former consort were living or not, or married a widow; and there were seven distinct connections by which it might be committed, so as to create an incapacity for orders. It is better, therefore, in writing of the different offense now to be explained to employ the equally appropriate word polygamy:

$ 578, How chapter divided.- We shall consider, I. The law of the offense; II. The procedure.

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$ 579. Under unwritten law.- By the common law it was not punishable to marry a second time during the life of the matrimonial partner, or to cohabit under such second marriage. Yet it was a canonical offense. And,

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SS 516–576 omitted from this edi. of congress, March 22, 1882 (22 Stat. tion.

30, ch. 47, § 1), where, in amending 2 Poynter, Mar. & Div. 142; 4 Bl. the former act (R. S. 5432), the word Com. 163, note.

"bigamy” was stricken out and “po 3 Shelford, Mar. & Div. 224; 1 East, lygamy” substituted.] P. C. 464; 20 How. St. Tr. 358, note; 4 Crim. Law, I, SS 501, 502. 1 Bishop, Mar., Div. & S., $ 714; Gise 5 Poynter, Mar. & Div. 144. East v. Com., 81 Pa. St. 428, 432. (See act says that until 1604 it was of “doubt

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