and knowingly combine and conspire with the said A. T., and near the said gaol did lie in wait, to the intent and purpose that the said A. T. might thereby be enabled to escape; and that pursuant to the contrivance and conspiracy of the defendant with the said A. T., and by his means and procurement she did escape and go at large from the said gaol, and so the said J. T. did convey the said A. T. away and assist her in escaping from the said gaol, contrary, &c. (Conclude as in book 1, chap. 3.)

(1055) Keeping keys with intent to commit burglary.(ƒ)

That J. C., late of, &c., yeoman, on, &c., at, &c., and within the jurisdiction of this court, with force and arms, &c., twenty false keys made of iron, in his custody and possession unlawfully had and kept, with a wicked intent on the dwelling-house of the citizens of this state in the night-time feloniously and burglariously to break, and with the same false keys to open and enter and the goods and chattels of the same citizens in the same dwellinghouse being, feloniously and burglariously to steal, take and carry away, against, &c. (Conclude as in book 1, chap. 3.)

(1056) Having in possession implements of burglary.(a)

That C. D., late of B. in the County of S., laborer, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, knowingly did have in his possession certain implements, that is to say, ten skeleton keys, adapted and designed for forcing and breaking open the dwelling-house of one E. F. there situate, with intent then and there, in the night-time of the said day, the dwelling-house of the said E. F. there situate, feloniously and burglariously to break and enter, and then and there, in the night-time as aforesaid, the goods and chattels of the said E. F., in the same dwelling-house then and there being, feloniously and burglariously to steal, take, and carry away; the said C. D. then and there well knowing the said implements to be adapted and designed for the purpose aforesaid, with intent then and there feloniously and burglariously to use and employ the said implements for the purpose aforesaid; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.

(1057) Attempting to obtain money by means of false pretences. The jurors, etc., upon their oath present, that A. B., late of B. in the County of S., trader, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A. B. was then and there sent to the said C. D. by one E. F. to request the loan of ten dollars, and that the said E. F. desired the said A. B. to say that the said E. F. would repay the same to the said C. D. on the next following day; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly attempt and endeavor to obtain from the said C. D. certain money, to wit, the sum of ten dollars of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. was not sent to the said C. D. by the said E. F. to request the loan of ten dollars, or any other sum of money; and whereas, in truth and in fact, the said E. F. did not say or desire the said A. B. to say that the said E. F. would repay the same to the said C. D. on

(f) Drawn by Mr. Bradford in 1789.

(a) See Regina v. Oldham, 2 Denison, C. C. 472; 5 Cox 551; 3 Carrington & Kirwan, 14 Eng. Law and Eq. Reps. 568.

the next following day, as the said A. B. then and there well knew; contrary to the form of the statute in such case made and provided.

(1058) Poisoning-by mixing arsenic with water, and administering the same with intent to kill, under Ohio Stat.(b)

That A. B. and C. D., on the thirty-first day of January, in the year of our Lord one thousand eight hundred and fifty-four, in the County of Hamilton aforesaid, unlawfully, wilfully and with malice aforethought, a certain quantity, to wit, four ounces of white arsenic, then and there being a deadly poison, did put, mix and mingle into and with a certain quantity of water, to wit, the quantity one quart of water, and the said poison being so mixed and mingled as aforesaid, they the said A. B. and C. D., then and there, well knowing the said white arsenic to be so mixed and mingled as aforesaid, and then and there well knowing the said white arsenic to be a deadly poison, on the day and year aforesaid, and in the county aforesaid, did unlawfully, wilfully and with malice aforethought, administer the said white arsenic, so mixed and mingled as aforesaid with the water aforesaid, to one M. N., then and there being, for the purpose and with the intent then and there to destroy and take the life of him the said M. N.

(1059) Administering poison with intent to murder.(g)

That A. B., &c., on, &c., in the county aforesaid, feloniously and unlawfully did administer to one J. N. (administer to or cause to be taken by any person), a large quantity of a certain deadly poison called white arsenic, to wit, two drachms of the said white arsenic (any poison or destructive thing), with intent then and there and thereby feloniously, wilfully and of his malice aforethought, the said J. N. to kill and murder, against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(Add a count stating that the defendant): "did cause to be taken by J. N. a large quantity," &c. (and if the description of poison be doubtful, add counts describing it in different ways; add one count stating it to be): "a certain destructive thing to the jurors aforesaid unknown."

(1060) Attempting to commit suicide. (h)

The jurors, etc., upon their oath present, that Marian, the wife of Henry Thomas Johnson, late of B. in the County of S., laborer, on the first day of June, in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, unlawfully and wilfully did cast and throw herself from and off a certain steamboat called the Bee, then and there being propelled along the waters of a certain river there, called the Thames, into the waters of the said river, with the wicked intent and purpose of then and there feloniously, wilfully and of her malice aforethought, choking, suffocating,

(b) Warren's C. L. 93.

(9) Arch. C. P. 5th Am. ed. This form is based on 7 Wm. 4 and 1 Vict. c. 85, s. 2, which enacts that "whosoever shall administer or cause to administer to or cause to be taken by any person, any poison or other destructive thing," "shall be guilty of felony," &c. The form in the text, however, would undoubtedly be held good as at common law in those states where no statute exists.

The indictment must allege the thing administered to be poisonous or destructive; and therefore an indictment for administering sponge mixed with milk, not alleging the sponge to be destructive, was held bad; R. v. Powles, 4 C. & P. 571. If there be any doubt whether the poison was intended for J. N., add a count stating the intent to be "to commit murder" generally; See Rex v. Ryan, 2 M. & R. 213.

(h) See 5 Cox, C. C. Appendix, p. xcii. for indictments for participation in suicide, see ante, 107, 138.

drowning and murdering herself in and by the waters aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say that the said M. J., on the day and year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully, wilfully and wickedly did attempt and endeavor feloniously, wilfully and of her malice aforethought, to kill and murder herself in the manner aforesaid; against the peace, etc.

CHAPTER XIII.

REVOLT, PIRACY AND VIOLATION OF THE LAWS CONCERNING THE SLAVE

(1061) Making a revolt.

TRADE. (i)

(1062) Endeavoring to make a revolt.

(1063) Same, setting out the "endeavor," to consist in a conspiracy, &c.
(1064) Setting out the endeavor to consist in a solicitation of others to neglect

their duty, &c.

(1065) Setting out the endeavor to consist in an assemblage of the crew in a riotous manner, &c.

(1066) Laying the time with a continuendo.

(1067) Piracy at common law.

(1068) Rioting on board ship.

(1069) Confining the master, &c.

(1070) Piratically and feloniously running away with a vessel, and aiding and abetting therein, &c., and assaulting master.

First count, running away with vessel.

(1071) Running away with goods, &c.

(1072) Same, stated more specially.

(1073) Assaulting master and running away with goods, &c.

(1074) Against principal offender for running away with vessel.

(1075) Against others as accessaries.

(1076) Breaking and boarding a ship, assaulting, &c., the crew and stealing, &c., the cargo.

(1077) Piratically breaking into, taking and carrying away a ship and certain goods on board the same.

(1078) Against a seaman for laying violent hands upon his commander, with intent to prevent his fighting in defence of his ship.

(1079) Attempting to corrupt a seaman to turn marauder and to run away with a ship.

(1080) Against an accessary to a piracy before the fact.

(1081) Against an accessary to a piracy after the fact.

(1082) Fitting, equipping, and preparing, and being concerned in fitting, &c., vessels for the slave trade in ports of the United States, as master or owner, under the act of 20th April, 1818, 2d and 3d s.

(1083) Same, but leaving out allegation that offence was after the act, and averring defendant caused the vessel to sail.

(1084) Preparing the vessel, &c.

(1085) Aiding and abetting in preparing, &c.

(1086) Serving on board of a vessel engaged in the slave trade, under act of 10th May, 1800, 2d and 3d s. First count, the vessel being American.

(1087)

(1088)

Second count, the vessel being foreign.
Third count. Same stated more specially.

(1089) Another form for the same.

(1090) Fitting out slaver, &c.

(i) See Wh. C. L. § 2829-68.

(1091) Forcibly confining and detaining negroes taken from the coast of Africa, with intention of making slaves of them, and for aiding and abetting, under act of 15th May, 1820, s. 5.

(1092) Against a part of defendants as principals and the others as accessaries.

(1093) Taking on board and receiving from the coast of Africa, negroes, &c., under the act of 20th April, 1818, s. 4.

(1094) Forcibly bringing and carrying away negroes from the coast of Africa, for the purpose of making slaves of them, under act of 15th May, 1820, s. 4.

(1061) Making a revolt.

THAT H. G., et al., all late, &c., on, &c., in and on board of a certain American ship or vessel called the Hibernia, then lying within the jurisdiction of a foreign state or sovereign, to wit, at, &c., the same then and there being an American ship or vessel, belonging to certain persons, citizens of the United States, whose names are to the jurors aforesaid as yet unknown, of which ship or vessel one A. B. was then and there master, with force and arms did make a revolt in said ship or vessel (by unlawfully, wilfully and with force usurping the command of such ship and vessel from the said the master thereof, or, by unlawfully, wilfully and with force depriving the said the master thereof, of his authority and command on board of the said vessel, &c.,),(a) they the said H. G., et al., then and there being the

(a) One of the segments of the passage in brackets or an averment of a similar character under the act, is made necessary by the decision of Judge Kane, in the case of U. S. v. Almeida, Dist. Ct. U. S., Phil., Feb. 1847. "The indictment," he said, "on which these prisoners were convicted a few days ago, charges that on the first day of November last, upon the high seas, &c., they being 'seamen of an American vessel, to wit, the barque Pons, with force and arms, did then and there feloniously make a revolt on board the said ship, contrary,' &c.

"A motion has been made in arrest of judgment, on the ground that the offence is not set forth in the indictment with adequate certainty; and it has been contended, that under the acts of Congress now in force, it was incumbent on the prosecution to set out more specifically the acts, which make up the offence charged.

"The question presented by the record is more interesting than difficult; but as it appears to be of the first impression, it properly invites an exposition of the views of the court in deciding it.

"The law secures to every man who is brought to trial on a charge of crime, that the acts which constitute his alleged guilt, shall be set forth with reasonable certainty in the indictment which he is called upon to plead to. This is his personal right— indispensable, to enable him to traverse the facts, if he believe them to be untruly charged-to deny their asserted legal bearing, if in his judgment they do not establish the crime imputed to him-or to admit at once the facts and the conclusions from them, if he be conscious of guilt. It is important to his protection also, in case he should be a second time charged for the same offence, that there should be no uncertainty as to that for which he was tried before. And besides all this, which may be supposed to regard the accused alone; it is necessary for the proper action and justification of the court, that it should clearly appear from facts patent on the record, that a specific, legally defined crime has been committed, for which sentence is to be awarded according to the laws that apply to it.

"There are exceptions, or rather limits, to the application of this principle; but they all refer themselves to the peculiar character of the offence charged. Thus, an indictment against a 'common barrator,' or for 'keeping a common gaming-house,' or ' a house of ill-fame,' is good without a specification of acts; for the essence of the offence in these cases is habitual character. So also, where the charge is not the absolute perpetration of an offence, but its primary characteristic lies in the intent, instigation or motion of the party towards its perpetration; the acts of the accused, important only as developing the mala mens, and not constituting of themselves the crime, need not be spread upon the record. Such are certain cases of conspiracy, and those of attempt or solicitation, to commit a known crime; where the mental purpose may not have been matured into effective action, or has had reference to criminal action by a third party-a class of exceptions, this last, which vindicates much of the judicial action under this statute.

"But these are only exceptions: the principle is as broad as the common law. It is not enough, and never has been, to charge against the party a mere legal conclusion, as justly inferential from the facts that are not themselves disclosed on the record. You may not charge treason, murder, or piracy, in round general phrases. You must set out the act which constitutes it in the particular case.

“Following out the principle, it has always been held that where various acts have been enumerated in a statute, as included in the same category of crime, and to be punished alike, it is not enough to charge the violation of such a statute in disjunctive or alternative terms. That is to say, you may not charge its violation to have been in this or that or another particular, leaving the defendant uncertain which or how many of the enumerated particulars he is to answer to. He is entitled to precise notice of the accusation against him.

"All these are long recognized rules of the criminal law, framed for the protection of innocence, and not unfrequently essential to its safety. The court has no right to disregard them, if it would; on the contrary, it is called upon by the highest duty that man can owe his fellow, to see to it that they lose none of that efficiency for good which is due to the uniformity and certainty of their application. The defendants have asserted of record, that in their case these rules of pleading have not been conformed to, that they have not had such notice of the offence charged against them as the law requires, and that there is not now within the judicial knowledge of the court that precise and specific assurance of their guilt, which can warrant us in pronouncing sentence upon this verdict. If it be so, they are not too late in bringing the fact to our notice.

"The indictment it is understood, is in accordance with the precedents under the Crimes' Act of 1790. By the 8th section of that act (1 Stor. P. S. 84), it was enacted, that if any seaman shall lay violent hands on his commander, thereby to hinder him from defending his ship, or the goods committed to his trust, or shall make a revolt in the ship,' he shall be adjudged to be a pirate and a felon; and by the 12th section, it was enacted that if any seaman shall confine the master of any ship or vessel, or ' endeavor to make a revolt' in such ship, he shall on conviction suffer imprisonment and fine.

"Almost all the indictments that have been framed under this act for offences similar to the present, have charged the offence in the words of the 12th section, for 'endeavoring to make a revolt;' U. S. v. Bladen, 1 P. C. C. R. 213; U. S. v. Smith, 3 W. C. C. R. 78; U. S. v. Smith and Combs, 3 W. C. C. R. 526; U. S. v. Kelly, 4 W. C. C. R. 528; U. S. v. Smith, 1 Mas. 147; U. S. v. Hamilton, 1 Mas. 443; U. S. v. Keefe, 3 Mas. 457; U. S. v. Hemmer, 4 Mas. 105; U. S. v. Haines, 5 Mas. 272; U. S. v. Gardner, 5 Mas. 402; U. S. v. Barker, 5 Mas. 404; U. S. v. Savage, 5 Mas. 460; U. S. v. Thompson, 1 Sumn. 168; U. S. v. Morrison, 1 Sumn. 448; U. S. v. Ashton, 2 Sumn. 13; U. S. v. Cassedy, 2 Sumn. 582; U. S. v. Rogers, 3 Sumn. 342. Now, as we have already remarked, a charge for such an offence as was the subject of all these cases, resting merely in the endeavor, not going to the perfected act, was, according to all the authorities, well laid in the succinct descriptive words of the section; and in the only cases under the 8th section, in which the principal offence of making a revolt was charged, (U. S. v. Sharp, 1 P. C. C. R. 118; Same v. Same, 1 P. C. C. R. 131; and U. S. v. Haskell, 4 W. C. C. R. 402), the indictment was quashed or the judgment arrested on other grounds, or else the acquittal of the prisoner made it unnecessary to discuss the question which is now before us. No sentence has ever been pronounced on such a conviction.

"Indeed, the courts before whom the cases were tried on indictments like this, though the particular question was not raised upon the pleadings, felt themselves embarrassed by the undefined phraseology of the act of Congress, and Judge Washington more than once recommended to the jury not to find the defendant guilty of either making or endeavoring to make a revolt, however strong the evidence might be; (see U. S. v. Sharp, and U. S. v. Bladen, ut supra).

"The question of the meaning of these terms was at last submitted to the Supreme Court of the United States, in a case that went up on a certificate of division from this circuit (U. S. v. Kelly, ut supra, and Wheat. 417), and in the spring of 1826 the import of the act of Congress of 1790 was judicially determined.

"In 1835, however, a new act of Congress (4 Stor. P. S. 2416) was passed, which, obviously referring to the language of the Supreme Court in Kelly's case, yet not adopting it, proceded to declare what violations of law should thereafter be deemed to constitute the crime of revolt. The language of the first section of this act is as follows:

"If any one or more of the crew of any American ship or vessel on the high seas, or on other waters within the admiralty or maritime jurisdiction of the United States, shall unlawfully, wilfully and with force, or by fraud, threats or other intimidations, usurp the command of such ship or vessel from the master, or other lawful command