A Treatise on Criminal Law and Procedure (Google eBook)

Front Cover
Bobbs-Merrill, 1919 - Criminal law - 764 pages
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Contents

Effect of repentance and withdrawal from the act
14
When omission to act is a crime
15
Acts mala in se and acts mala prohibita
16
Police wrongs and criminal wrongs
17
SOURCES OF THE LAW OF CRIMES 20 The five sources of law
19
Section Page 22 Acts of Congress
20
Acts of state legislatures
22
Acts of territorial legislatures
23
The American common law
24
Mode of determining the common law
25
Importance of the common law
26
Abolition of the common law
27
CONDITIONS OF CRIMINALITY 35 Conditions of criminality
29
AGE LIMITS OF CRIMINAL CAPACITY 40 Under seven years
30
Effect of command of parent to do the act
32
Over fourteen years of age
33
MENTAL CAPACITY 55 InsanityDefinition
34
Classification of insanity
35
ManiaIntellectMonomania
36
Tests of criminal responsibility
37
The wild beast test
38
Power of control test
40
The rule in Illinois
41
The New York rule
42
Burden of proof
44
Somnambulism
45
Reasons for rule as to intoxication
46
Exceptions to rule as to intoxication
47
Effect of delirium tremens
48
Drunkenness may negative commission of the act
49
The rule as to intoxication in Illinois
51
Involuntary intoxication
52
ACT MUST BE VOLUNTARY 90 Classes of cases in which question of compulsion arises
54
Subordinate commits crime by command of superior
57
Actual duress by persons without authority
59
Actual duress of necessity in other cases
61
Inability to perform a legal duty
62
CRIMINAL INTENT 100 The general rule
64
Criminal negligence
65
Criminal intent implied
66
Specific criminal intent
67
Criminal intent usually transferable
68
Criminal liability for unintended result
69
MaliceDefinitionClassification
71
Malice aforethoughtDefinition
72
Ignorance or mistake of law
73
Section Page 112 Advice of attorney
74
Religious belief
75
Mistake of fact
76
Mistake in reference to statutory crimes
78
Mistake in bigamy and adultery
84
Bishops view of mistake of fact
86
The better view of mistake as defenseThe weight of authority
87
THE OVERT ACT 125 In general
89
Mere possession
90
Mere preparation to commit a crime
91
Solicitation to commit a crimeIn general
92
SolicitationWhartons view
93
Solicitation to commit a felony
94
Solicitation to commit a misdemeanor
95
Attempts to commit crimesIn general
97
AttemptThe intent
98
AttemptThe act doneA different question
100
AttemptWhartons view criticized
101
AttemptActs which have been held sufficient to constitute crim inal attempts
103
AttemptActs which have been held insufficient to constitute criminal attempts
107
MERGER OF CRIMES 145 DefinitionUse of terms
109
Merger of tort in felonyEnglish rule
110
Merger of tort in felonyHistory of the doctrineJudge Bige lows view
111
Felony versus misdemeanorDoctrine of merger at common law
113
Felony versus misdemeanorThe modern doctrineCommonlaw rule abrogated
115
Crimes of equal grade do not merge
116
Classification
118
Section Page 161 Principal in the first degreeDefinition
119
Principle of constructive presence based upon necessity
120
Separate acts pursuant to common design as test of principal in first degree
121
Principal in the second degreeDefinition
122
The second condition of principal in second degree
123
The third condition of principal in second degree
124
Accessory before the factDefinition
125
Second condition of accessory before the fact
126
Accessory after the factDefinition
127
Third condition of accessory after the fact
128
Basis of criminal liability of accessory after the fact
129
Distinction between principals and accessories before the fact abolished
130
Order of trial of accessory before the factRule at common law Rule by statute
131
AccomplicesDefinitionCriminal liability
132
AccomplicesAct done must be the natural and probable conse quence of the conspiracy
133
Principal and agent
134
SPECIFIC CRIMES
139
False Imprisonment 290299
143
Section Page 205 Definition
144
A statutory crime
145
Statutes in this country
146
Consent of girl immaterial
147
For the purpose of prostitution
148
For the purpose of concubinage
149
Sexual intercourse not essentialAbduction committable by a woman
150
Circumstances attending the taking
151
Abortion 220227
153
Before and after quickening
154
Lord Cokes view
155
Statutory modifications of the common law
156
Intent necessary
157
ASSAULTS 230 DefinitionGist of the offense
160
An apparent intention sufficient
161
An apparent ability sufficient
162
Section Page 233 Mere words or gestures insufficient
163
Mere preparation insufficient
164
Classification of assaults
165
Adaptation of act done and means employed to accomplish purpose
166
Proof that death of victim would have been murder essential but not sufficient
167
Assault with intent to kill
168
Assault with intent to rob
169
Transferability of the criminal intent
170
Assault with intent to do grievous bodily harm
171
Assault with a deadly weapon
172
What is a deadly weapon?
173
Assault and battery
174
Taking indecent liberties with women
175
Taking indecent liberties with childrenIllinois statute
176
Striking a substance attached to a person
177
Setting a dog on a person
178
CONSPIRACY 265 Definition
180
Gist of the offense
182
Contemplated crime one of which concert conspirators is a con stituent part
183
When the unlawful agreement is of itself a crime
184
Mode of making the agreement
185
Historical development of the term
186
Conspiracy to commit a crime
187
Conspiracy to commit a mere civil wrongIn general
188
Section Page 278 Conspiracy to perpetrate a fraud
189
Conspiracy to slander or extort money from another
190
Conspiracy to obstruct or pervert public justice
191
Labor combinations
192
Combinations to force other employes to quit work
193
BoycottingDefinitionOrigin of term
194
Legality of act depends upon means employed
195
PicketingInjunction
197
Combination to raise prices
199
FALSE IMPRISONMENT 290 Definition
201
Submission against the will essential
202
Mode of detention immaterial
203
Abuse of authority by officer
204
HOMICIDE 305 Homicide in generalDefinition
206
ClassificationDefinition
207
Killing felon to effect arrest or prevent escape
208
Killing to quell riot
209
Killing to prevent felony
210
Excusable homicideDefinitionClassification
211
Homicide in selfdefenseGeneral requisites
212
Homicide in justifiable selfdefense
213
Retreat unnecessary
214
The danger must be imminent
215
Facts admissible to prove danger imminent
216
EvidenceGrounds of apprehension must be reasonable
217
standard
218
EvidenceWhen duty to retreat existsDistinction between ex cusable selfdefense and justifiable selfdefense
220
Defense of third persons dwelling or property
222
KIDNAPPING 330 Definition
224
Physical force not essential
225
Age and consent of person taken
226
Specific intent essential
227
Unlawful arrest
228
A misdemeanor at common law
229
MANSLAUGHTER
230
DefinitionClassification
231
Intention to kill must be present
232
Malice aforethought must be absent
233
Malice implied when acts barbarous
234
Nature and scope of the emotion engendered
235
Passion or state of mind must emanate from the provocation
236
Illegal arrestNot a justificationAn exception
237
Illegal arrestThe slayer a felon
238
Homicide which results from mutual combat
239
Homicide which results from husbands knowledge of wifes adul tery
240
AdulteryReasonable belief of wifes guilt sufficient
241
Illicit intercourse with slayers sister or daughter
242
Trespass upon property insufficient provocation
243
Homicide resulting from a duel
244
Involuntary manslaughterDefinitionEssentials
245
Homicide arising from assault and battery
246
Homicide arising from playing football
247
Homicide arising from a riot
248
Homicide arising from a mere tort
249
Homicide arising from shooting at a target
250
Homicide arising from turning a vicious animal where it may in jure someone
251
Treatment or operation by physicianBishops view
252
Homicide arising from nonfeasance
253
Homicide arising from wilful omission to perform legal duty con stitutes murder
254
Homicide arising from omission to perform legal duty owing to religious scruples
256
Homicide arising from negligence less than gross
257
MAYHEM 390 Definition
258
Nature of the crime at common law
259
The Coventry ActThe modern English statutes
260
Injury to genital organs
261
Injury inflicted in selfdefense
263
MURDER Section Page 405 DefinitionCokes descriptionRequisites
265
Mental capacity of the slayer
266
Independent circulation
267
Effect of premature birth
268
Actual intent to kill not essential
269
Malice presumed from the use of a deadly weapon
270
Wilful omission to perform a legal duty
271
Meaning of terms premeditation and deliberation
272
Murder in the second degree
273
Suicide
274
Proof of the corpus delicti
275
RAPE 425 Definition
276
Against her willWithout her consent
277
Consent induced by fraud
278
Woman insane or idiotic
279
Clevengers view
280
Woman sane but insensible
281
Woman asleep
282
Carnal knowledge of a child
283
Consent obtained by fraudulent representation of physician
285
The act itselfPenetrationEmission
286
Incapacity of maleBoy under fourteen
287
Criminal responsibility of husband or wife
288
Chastity of the victim
289
Definition
290
Seduction not indictable at common law
291
Certain English statutes not applicable
292
Meaning of the term chaste character
293
Reformation of the female
294
Mode of proving chastity
295
Unchastity of female shown by particular acts
296
Rule where chastity of prosecutrix is presumed
297
Effect of subsequent marriage
298
Effect of promise of marriage conditioned on pregnancy
299
Title Three CRIMES AGAINST THE HABITATION Chapter XXIV Arson 465173
300
Character of the building
301
The burning
302
The intent
303
Statutory changes
304
BURGLARY 475 Definition
305
Section Page 478 The entry
309
Dwellinghouses
310
Nighttime
311
The intent
312
485487
314
What kind of threats are indictable
315
CHEATING AND FALSE PRETENSES 490 Cheating at common law
317
What constitutes a false token
319
Cheating by false pretenses
321
Definition and essentials
322
Representation must be more than an expression of opinion
325
The representation must be knowingly false and made with fraud ulent intent
327
The representation must be calculated to deceive and defraud and actually do so
330
Nature of the property obtained
331
Property versus mere possession
332
The statutes applicable to donations for charitable purposes
333
Confidence games
334
EMBEZZLEMENT Section Page 505 Definition
335
American statutes
337
Receiving the property by virtue of the employment
338
The fraudulent intent
340
Intent or offer to return property
341
Money paid or property delivered by mistake
343
FORGERY 516 Definition and essentials
344
Nature of the instrument
345
Injury from forgery
354
LARCENY 533 Definition
355
Essentials
356
Dogs
357
Fruit trees fixtures etc
358
Chandeliers keys etc
359
Choses in action
360
Manure
361
Body of dead person grave clothes
362
Possession versus custody
363
Finding lost property
365
Property delivered by mistake
367
Ownership must be in another
373
Asportation of the property
375
Asportation by enticement
376
Asportation by innocent agent
377
The caption and asportation must be felonious
378
Asportation need not be for benefit of taker
379
Not larceny where taken under claim of right
381
The property must have some value
383
Forms of larceny
384
MALICIOUS MISCHIEF 563 Definition
386
Statutory enactments
387
Mode of proving malice
388
Justification of the act
389
The indictment
390
ROBBERY 575 Definition and essentials
391
The caption must be by violence or intimidation
393
UTTERING A FORGED DOCUMENT 580 Definition and essentials
398
Title Five CRIMES AGAINST PUBLIC JUSTICE Chapter XXXIV Bribery and Embracery 585591
401
Official acts
402
Definition of embracery
404
COMPOUNDING AND MISPRISION OF FELONY 595 Definition of compounding a felony
405
Compounding a misdemeanor
406
Definition of misprision of felony
407
CONTEMPT 605 Definition
409
What acts have been held contempts
410
Newspaper articles
411
FRAUDULENT CONVEYANCES AND CONCEALING PROPERTY 610 Fraudulent conveyances 611 Concealing property 412
412
OFFICIAL MISCONDUCT Section Page 615 In general
414
Partial malicious and corrupt acts by magistrates
415
Refusal to accept public office
416
PERJURY 625 Definition
418
Act wilful and corrupt
419
Lawful oath or affirmation
420
Judicial proceeding or in course of justice
421
Materiality of the testimony
423
By whom punishable
424
Subornation of perjury
425
RECEIVING STOLEN GOODS 640 Definition and essentials
426
The act must be felonious
428
Consent of the other party essential
429
Doctrine of lucri causa
430
Subsequent adoption of wifes act
431
Recent possession of stolen goods
432
RESISTING AN OFFICER 650 Obstructing justice
433
Title Six CRIMES AGAINST PUBLIC PEACE Chapter XLII Affray 655657
435
The fighting must be by agreement
436
CARRYING CONCEALED WEAPONS 659 Carrying concealed weapons
437
COMMON BARRATRY MAIN TENANCE AND CHAMPERTY 661 Common barratry
439
Champerty
440
Modern rule
441
DUELING AND PRIZE FIGHTING 665 Dueling
442
Importation of prize fight picture films
443
ESCAPE PRISON BREACH AND RESCUE 668 In general
444
Prison breach
445
Rescue
446
FORCIBLE ENTRY AND DETAINER Section Page 673 Forcible entry
447
Forcible detainer
448
Definition
449
Jurisdiction
451
Miscellaneous libels
452
Privileged communications
453
Excitement or anger of accused
454
UNLAWFUL ASSEMBLY ROUT AND RIOT 682 In general
455
Rout
456
Title Seven CRIMES AGAINST PUBLIC WELFARE HEALTH SAFETY MORALS AND RELIGION Article I Nuisance and Like Offenses Against ...
458
Section Page 690 Generally
459
NUISANCE 69L Definition
460
Locality determining a nuisance
462
Abatement
463
Nuisance caused by personal conduct
464
Nuisances made specific offenses by statute
465
CRUELTY TO ANIMALS 700 A statutory offense
466
Malice or intent as essential to offense
467
What acts indictable
468
Definition
469
Bawdy houses or houses of illfame
470
What is a house and who a keeper
471
Letting house of illfame or procuring or encouraging its keeping
472
Section Page 710 Definition
473
GAMES AND GAMING 713 Games
475
Public place
476
What have been held games of chance
477
Statutes against gaming
479
Gaming acts constituting statutory offense
480
Betting
481
Keeping gaming house
482
Keeping gaming tables or devices
483
Allowing gaming on premises
484
Permitting minors to gamble
485
LOTTERIES 726 Definition
486
What schemes punishable
487
What is not lottery
489
OFFENSES AS TO HIGHWAYS 730 Obstructing highways
490
What is an obstruction
491
Intent and defenses
492
Obstructing or polluting waters
493
Other highway offenses
494
OFFENSES AGAINST RELIGION 740 Blasphemy
495
Working on Sunday
496
Work excepted from operation of Sunday laws
497
Disturbing religious meeting
499
VIOLATION OF LIQUOR LAWS Section P ee 746 Generally
502
Liquor statutes and Federal Constitution
503
Liquor statutes and state constitutions
504
Construction of liquor statutes
506
License
507
What are intoxicating liquors
511
What is a sale
512
Sale or purchase by agent or servant
514
Sale for medical use
515
Intent and knowledge
516
Keeping intoxicating liquor for sale
517
Case of United States v Hill decided Jan 13 1919
520
The Eighteenth Amendment to the Federal Constitution
522
76ft The BoneDry Law of the State of Kansas
523
Sexual Crimes Against Decency and Morality Chapter LX Adultery 761769
525
Elements of offenseWhat must be proved
526
Defenses
528
Complaint of husband or wife
529
Living in adulteryIllicit cohabitation
530
Attempt to commit adultery
531
BIGAMY OR POLYGAMY Section Page 770 Definition and history
533
Jurisdiction
534
Voidable prior marriage
535
Void previous marriage
536
Divorce from first marriage
537
Death of former spouseProof and presumptions
538
Proof of marriage or divorce
539
Second marriage
540
Intent
541
Other defenses
542
FORNICATION 785 Definition
543
What must be shown to convict
544
Presumption of legitimacyBurden of proof
545
INCEST 790 Definition
547
Elements of offense
548
Incest and rape
549
Weight and sufficiency of evidence
550
INDECENT CONDUCT AND OBSCENITY 795 Public indecency
551
Obscene language
552
Indecent exposure of person
553
MISCEGENATION 802 Definition
555
Section Page
556
COUNTERFEITING AND UTTERING
563
Section Page
567
Admiralty Crimes 832836
569
Miscellaneous Statutory Offenses Under
573
CRIMES AGAINST THE SOVEREIGNTY Section Page 847 Subdivision of crimes against sovereignty
576
Levying warRequisites
577
Misprision of treason
578
Cancellation of certificate of naturalization
579
PART THREE CRIMINAL PROCEDURE
581
Preliminary 860866
583
Jurisdiction
584
State courts
585
Federal courts
586
Venue
587
Change of venue
590
Steps in trial
591
ARREST AND EXTRADITION 870 Arrest
592
Warrant
593
Arrest by warrant
595
Section Pagt 875 Arrest without warrant by private persons
596
Arrest without warrant by officer
597
Assisting officer
598
Amount of force which may be usedBreaking doors
599
Disposal after arrest
600
Extradition and fugitivesGenerally
601
Interstate extradition
602
International extradition
605
PREMIMINARY PROCEEDINGS AND BAIL 885 Preliminary proceedings
607
Procedure in examination
608
Bail
610
Forms and requisites of bail
612
Release of sureties
613
Forfeiture of bail
614
MODES OF ACCUSATION AND INDICTMENT 895 Modes of accusationIndictmentInformation
616
The grand jury
618
Qualifications of grand jurors
619
Powers of grand jury
620
Record and caption of indictment
623
Description of defendant
624
Certainty
626
Particularity of description
627
Technical words
629
Matters of defense
630
Repugnancy
631
Language usedAbbreviations
632
Clerical errors
633
Written instruments
634
Description of property
635
Description of third persons
637
Section Page 915 Intent
638
Notice request or knowledge
639
Place
640
Time of the offense
642
Surplusage
643
Duplicity and misjoinder
644
Variance
648
Joinder of parties
651
Remedy in case of misjoinder
653
The overt act
654
Indictments on statutes
655
What statutory exceptions must be negatived
657
Conclusion
658
Amendment
660
Defects cured by statute
661
Aider by verdict
662
Certain special indictmentsIndictment for murder
663
Indictment for larceny
666
Indictment for false pretenses
667
Analogous offenses
668
ARRAIGNMENT AND DEFENDANTS PLEAS 940 Arraignment
670
Various kinds of defendants pleas
671
Plea in abatement
672
Demurrer
673
Motion to quash
674
Plea of not guilty
675
Plea of guilty or nolo contendere
676
When jeopardy begins
677
Identity of party and offense
678
Where one indictment is for felony the other for misdemeanor
679
Injury affecting more than one person
680
Agreement to turn states evidence
681
TRIAL Section Page 960 Time for trial
682
Continuance
683
Presence of the accused at trial
684
Change of venue
685
Counsel for defendant
686
Defendants right to copy of indictmentNames of jurors or wit nesses and bill of particulars
687
Presence and conduct of judge at trial
688
Right to challenge
690
Swearing the jury
692
Functions of the court and jury
693
Arguments of counsel
695
Charge of the court to the jury
696
Custody and conduct of the jury
697
What the jury may take to their room
698
EvidenceGenerally
700
Presumptions and burden of proof
703
PROCEEDINGS AFTER VERDICT 990 Motion in arrest of judgment
705
Motion for new trial and to set aside the verdict
706
Sentencing the prisoner
707
The sentence
708
Execution of the sentence
709
Review of the proceedings
710
Habeas corpus
711
Assaults 230259
728
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Common terms and phrases

Popular passages

Page 39 - ... to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.
Page 21 - In all criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel ; to demand the nature and cause of the accusation, and to have a copy thereof; to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.
Page 21 - Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives and for justifiable ends, shall be a sufficient defense.
Page 43 - For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment.
Page 518 - Whoever shall -order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes, into any State or Territory the laws of which State or Territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes...
Page 21 - And no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary...
Page 22 - No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.
Page 21 - All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great.
Page 22 - All penalties shall be proportioned to the nature of the offense; and no conviction shall work corruption of blood or forfeiture of estate ; nor shall any person be transported out of the State for any offense committed within the same.
Page 272 - That all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder in the second degree...

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