§ 69. In most of the United States, statutes have been enacted against this offence; but these statutes are not understood in all cases to have abrogated the common law; the rule being, that where the statute does not vary the class and character of an offence, as, for example, by raising what was a misdemeanor into a felony, but only authorizes a particular mode of proceeding and of punishment, the sanction is cumulative, and the common law is not taken away.1 70. The proof of the indictment for this crime will consist of evidence, showing that the defendant uttered or published the words charged, and with the malicious and evil intent alleged. The intent is to be collected by the jury from all the circumstances of the case.2 * at racter of our Lord and Saviour Jesus Christ,] to dishonor and blaspheme, and to scandalize and vilify the [Holy Scriptures and the] Christian religion, and to bring [them] into disbelief and contempt, on in the county aforesaid, did, wilfully, maliciously, and blasphemously, with a loud voice, utter and publish in the presence and hearing of divers good citizens of this (State,) the following false, profane, scandalous, and blasphemous words, to wit: [here state the words, verbatim, with proper innuendoes, if the case requires it ;]* in contempt of the Christian religion and of good morals and government, in evil example to others, and against the peace of the (State) aforesaid. The indictment for publishing a blasphemous libel omits the words between the two asterisks in the above precedent, and in their place charges as follows: unlawfully and wickedly print and publish, and cause to be printed and published, a false, scandalous and blasphemous libel of and concerning the Christian religion, containing therein, among other things, divers scandalous and blasphemous matters, of and concerning the Christian religion, according to the tenor and effect following, to wit: [here set forth the libel in hæc verba, with proper innuendoes,] in contempt [&c., as above.] 1 Rex v. Carlisle, 3 B. & Ald. 161, per Bayley, J.; Rex v. Robinson, 2 Burr. 803, per Ld. Mansfield. And see Rex v. Waddington, 1 B. & C. 26. 2 See further, infra, tit. LIBEL. BRIBERY.1 § 71. BRIBERY is generally defined to be the receiving or offering of any undue reward, by or to any person whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity. But it is also taken in a larger sense, and may be committed by any person in an official situation, who shall corruptly use the power and interest of his place, for rewards or promises; and by any person who shall give, or offer, or take a reward for offices of a public nature; or shall be guilty of corruptly giving or promising rewards, in order to procure votes in the election of public officers. Thus, it has been held bribery, by the common law, for a clerk to the agent for pri at 1 The indictment for bribing, or attempting to bribe a Judge, may be thus: The Jurors, (&c.) on their oath present, that A. B. of on within the county aforesaid, did unlawfully, wickedly, and corruptly give (or, offer to give) to one C. D. of he the said C. D. being then and there a Judge (or, one of the Justices) of the (here insert the style of the Court,) duly and legally appointed and qualified to discharge the duties of that office, the sum of dollars, as a bribe, present, and reward, to obtain the opinion, judgment, and decree of him the said C. D. in a certain suit, (controversy, or cause,) then and there depending before him the said C. D. as Judge as aforesaid, (and others the associate Justices of said Court,) to wit, (here state the nature of the suit or proceeding,) the said office of Judge (or, Justice) being then and there an office of trust concerning the administration of Justice within the said (United States, or, State, or, Commonwealth,) against the peace, &c. This precedent was drawn upon the statute of the United States of April 30, 1790, 21, (see Davis's Preced. p. 79,) but is conceived to be equally good, being varied as above, in a prosecution at common law. 23 Inst. 145; 1 Russ. on Crim. 154; 4 Bl. Comm. 139; 1 Hawk. P. C. ch. 67. 3 Ibid. soners of war, to take money in order to procure the exchange of some of them out of their turn;1 or, for one to offer a cabinet minister a sum of money to procure from the crown an appointment to a public office; 2 or, corruptly to solicit an officer of the customs, whose duty it was to seize forfeited goods, to forbear from seizing them; or, to promise money to a voter for his vote in favor of a particular ticket or interest in the election of city officers, or of members of parliament.5 3 §72. The misdemeanor is complete by the offer of the bribe, so far as the offerer is concerned. If the offer is accepted, both parties are guilty. And though the person bribed does not perform his promise, but directly violates it, as for example, if, in the case of an election, he votes for the opposing candidate or interest, the offence of the corrupter is still complete. So, though the party never intended to vote according to his promise, yet the offerer is guilty.7 § 73. If it be alleged in an indictment for corrupting a voter, that he had a right to vote, this allegation will be sufficiently proved by evidence that he actually did vote, without challenge or objection. The allegation of the payment of money to the voter may be proved by evidence that it was under color of a loan, for which his note was taken, if it were at the same time agreed that it should be given up, after he 1 Rex v. Beale, cited 1 East, 183. 2 Rex v. Vaughan, 4 Burr. 2494; Stockwell v. North, Noy, 102; Moor, 781, S. C. So, where several persons mutually agreed to procure for another an appointment to a public office, for a sum of money, to be divided among them, it was held a misdemeanor at common law. Rex v. Pollman & al. 2 Campb. 229. 3 Rex v. Everett, 3 B. & C. 114. 4 Rex v. Plympton, 2 Ld. Raym. 1377. 5 Rex v. Pitt, 3 Burr, 1335, 1338. 6 Sulston v. Norton, 3 Burr. 1235; Harding v. Stokes, 2 M. & W. 233; Henslow v. Fawcett, 3 Ad. & El. 51. The last two cases were actions upon the statute; but the doctrine is that of the common law. 7 Henslow v. Fawcett, supra, per Patteson, J. and Coleridge, J. had voted.1 So, if the corrupter's own note were given for the money. So, if the transaction were in the form of a wager or bet with the voter, that he would not vote for the offererer's candidate or ticket. So, if the voter received from the offerer a card, or token, in one room, which he presented to another person in another room, and thereupon received the money, it is evidence of the payment of money by the former.1 1 Sulston v. Norton, 3 Burr. 1235. 2 Ibid. 3 1 Hawk. P. C. ch. 67, sec. 10, (n) cites Lofft, 552. 4 Webb v. Smith, 4 Bing. N. C. 373. BURGLARY.1 § 74. THIS offence is usually defined in the words of Lord Coke, who says that a burglar is "he that, by night, breaketh and entereth into a mansion-house, with intent to commit a felony." Evidence of all these particulars is therefore necessary, in order to maintain the indictment. 2 § 75. In regard to the time, the malignity of the offence consists in its being done in the night, when sleep has disarmed the owner, and rendered his castle defenceless. And it is night, in the sense of the law, when there is not daylight [crepusculum or diluculum,] enough left or begun, to discern a man's face withal. The light of the moon has no relation to the crime. Both the breaking and entering must be done in on 1 The form of an indictment for burglary, at common law, is as follows:The Jurors (&c.) upon their oath present, that (naming the prisoner,) late of and about the hour of in the night of the same day, with force and arms, at in the county aforesaid, the dwellinghouse of one (naming the occupant) there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said (occupant) in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away; [if goods were actually stolen, add as follows:- and one (here describe the goods, alleging the value of each article,) of the value of dollars, of the goods and chattels of the said (occupant,) in the dwelling-house aforesaid then and there being found, then and there feloniously and burglariously did steal, take, and carry away;] against the peace of the State (or Commonwealth) aforesaid. 2 3 Inst. 63; 1 Russ. on Crimes, 785; Commonwealth v. Newell, 7 Mass. 247. 3 4 Bl. Comm. 224; 1 Hal. P. C. 550, 551; Commonwealth v. Chevalier, 7 Dane's Abr. 134; 1 Gabbett, Cr. L. 169; The State v. Bancroft, 10 N. Hamp. 105. |