Page images
PDF
EPUB

For instance, the indictment in viiled that the most trunipery failure the Webster-Parkman case chargeul to fulfil the requirements of an Dr. Welster in four counts, with irrational system should be suffi. the murder of Dr. Parkman, the cient to secure him practical impumethod lwing varied in each, and nily for his crime. On the other the last lving as follows: "That hand, in favor of the Crown, it was the saill Jolin W. Welster, at Bos. prurile that the prisoner sluould 1on, aforesail, in the county afore not be entitled to a copy of the säil, in a certain building known .indictment in cases of felony, but as the Medical College, there situ. only to have it read over to him iste, on the 2311 vlay of November slowly, when he was put up to last past, in and upon the said pleadl, a rule which made it exccedlieurye Parkınan, did seloniously, ingly difficult for him lo lake willfully, and of malice afore. advantage of any defect. Put then thought, make an assault, and him, again, any person might point out the sil George Parkınan, in somnc such a Naw, anil it was in a sort of way anil manner, and by some a way the duty of the judge, as means, instruments and weapons lo counsel for the prisoner, to do so. thie jurors unknown, diel then and On the other hand, sarne Naws there filoniously, willfully, and of were and others were not waived malice aforethouglie, deprive of by pleading to the imlictment. life so that lie, the still George • In short it is scarcely a paroly Parkman, then and there lied." to say that from the carliest time to

Mr. Justice STEPITEN, in his our own days the laws relating to History of the Criminal Law of iw.lictments was much as is some Tinglan, comments thus on the small portion of the prisoners connecessity of particularity in indict victed had been allowed to loss up mients:

for their liberty: "I do not think that anything " The rule that the indlictments has lemleri more strongly to bring must set out all the cleinents of the the law into discreclit than the offence charger, was some sort of importinice attached to such tech security against the arbitrary multinicnlilies in these. As far as they plication of offences and extensions we'lll their tendency was to make of the criminal laws by julicial the administration of justice a legislation in times when tfuere solenn farce. Such scandals do were no definition of crimes extalı not sem, however, to have bren lished lay statute, or, indeed, by any unpopular. In-Iced, I have some generally recognized authority. doubt whether they were not popur

If, for instance, it had been lawful lar, as they did mitigate, though in to indict a man in general terns, an irrational, capricious manner, say for high treason, and if the the excessive severity of the old judges had had to say what concriminal law.

stituted high treason, the law might 6. There was a strange alteration have been stretched to almost any in the provisions of the law upon extent. The necessity for setting this sulject, by which irrational forth that the prisoner imagined aclvantages were given alternately that the death of the king, and to the Crown and to the prisoner, manifested such imagination by In favor of the prisoner it was pra such and such overt acts, was a

considerable security against such ions, to expect the prosecution to an extension of the law, though, as give the defendant as little knowl. the history of the crime of treason edge of the details of the crime will show, it was not a complete charged as possible, and for the one. The same principle was illus- defendant to claim a liberal intertrated by indictments for libel in pretation of his constitutional the latter part of the last century, rights. Around this contest the and even in our own days instances cases naturally arrange theoiselves. may be found in indictments for The statute cannot override the

conspiracy in which laxity of plead defendant's constitutional right to . ing might have had serious conse bc “informed of the nature and

quences to the accused. The fact cause of the accusation," V. Amend. is that looseness in the legal defini ment to Federal Constitution, and tions of crimes can be met only by similar provisions exist in all state strictness and technicality in indict. constitutions: Penna. Art. 1, \ 9. ments, and that indictments may All statutes must be interpreted in be reduced with perfect safety to view of this right of the defendant. perfect simplicity as soon as the It is clear that the defendant is law has either been calified or entitled to something more than to reduced to certainty by authoritire be charged with a crime in the writings which practically supply words of the Act, for instance, an the place of a code."

indictment charging that John The history and the general rule Jones "had unlawful carnal knowl. relating to particularity in indict. edge of a woman forcibly and ments lead us to the main question against her will " would be to involved in the principal case, charge the crime in the words of namely, the effect of statutory the Act of Assembly of Pennsylvaprovisions provilling that indici- , nia defining the crime of rape, but ments are sufficient when the to draw a good indictment, the charge is stated in the words of the prosecution would have to allege statute.

the name of the person ravished It is natural, under such provis and the time and place. CASES IN WHICH TUK INDICTMENT HAS BEEN HELD IssuFFICIENT

THOUGH IN THE WORDS OF THE Act. Fulse Pretences.Com. '. Mul of, or putting off any instrument holland), 14 1'. S. 245. Imictinent whatever, or for obtaining or for false pretences quashed because attempting to obtain any property the pretences were not set out. by false pretences, to allege that

Forgery.-Com. v. Mulholland, s the defendant did the act with the W.X. C. 7o8. Indictment for for. intent to defraud, without alleging gery must show that the written the intent of the descodant to instrument was calculated 20 de defraud any particular person.' It fraud. Judge Thayer said: “Nor is sufficient under this section to is the defect of this indictment charge a general intent to defrand aided by the 19th section of the instead of charging an intent to same Act, which declares that It defraud a particular person, but shall be sufficient in any indict- the charge must, bevertheless, comment for forging, offering, disposing tain all the necessary elements of a

Nie case:

criminal offence, and must set forth allcges proceedling in which oath an instrument in its nature and was taken, name of officer before upon its face or a character to whom taken, his authority to take injure some one, or must show this it, its falsity and materiality. by averment of extrinsic facts. It Rivers i'. Suales, 12 So. R. 134. was not intenderl to say that every Ala. (1893) : Indictment for per inlictment charging forgery, which jury must state the facts falsely Alleges that the act was done with sworn to, and the officer or court intent to defraud, should be suffi. before whom or in which the cient. As well there miglit be offence was committed. Inclictsaid that, under the language of ment charging that lefendant did the same section, every indictment corruptly give or offer to give $3 charging the offence of obtaining with intent to induce him to comproperty by false pretences, which mit a certain crime punishable as alleges that the act was done with felony, to wit, the crime of perjury, intent to defraul, is sufficient-a was insufficient. Williams a. Com. proposition wbich was distinctly 91 Pn. 493 (1879): Indictment for repuliated by the Supreme Court perjury. Oath was set out. Motion in Com. i'. Frey, 14 Wright, 245, to quash denied, but Bill of Par. where it was expressly rulerl that ticulars granteri, Justice Trunkey such an indictment in order to be wying : "In simplifying the indict. gooul, must set forthi particularly ments it was not the intention to what the false pretences were." make their brics and comprehensive Jullyc 'Thayer further says in the terris A cover for suares to be

sprung upon the accusel." Grattan " This section of the Criminal 1. State, 71 Ala. 244 (1892): Not Procedure Act was not intended to sufficient to follow words of statute authorize a loose method of criminal unless the indictment alleges the pleading, by which an accused fact in doing or not doing of which person might be put upon trial the offence consisted. upon general, vaguc, indefinite, Offences against the Liquor Laws. and insufficient charges, but only -l'. S. Simmins, 96 V. S. 360 : to compl him to make his objec Indictment for illegal distilling. tions to the indictment before the Defendant was charged with pm trial instead of afterwariis, and this curing to be used, a still. Held, is the construction which has been that the party who used the still put upon it by this court, in Com. should be named, "The accused v. Galbraith, 6 Phila. Rep. 281, and must be apprised with reasonable by the Supreme Court in Com. v. certainty of the accusation against Frey, 14 Wright, 249."

him .... an indictment noto r'eople :. Foolc, sa N. W. 1036 framed is defective although it may Mich. (1892):

follow the language of the statute." Variance between complaint and State r'. Stephen, 12 So. R. 883; warrant not fatal when complaint Seifried ?'. Com. 101 Pa. 200: Incontained the truth.

dictment unler general liquor law, Asking defendant of criminal act committed in a locality having acts when under cross-examination. a special prohibitory status. Indict.

Perjury.-Walker v. Slate, 11 So. ment held insufficient. R. 401 (Ala.): Indictment which Offeuses against the post office

Laws.-1'. S. i. Iless, 124 U.S. 204: constitutional right to demand the Indictment for "scheme to defraud nature and cause of his accusation, .... by means of the post office so that he may identify the particu. establishment of l'. S." Indict. lar charge and offence :" Turnip ment in words of statute insufficient. sced ». State, 6 Ala. 666; Anthony

Blasphemy.-Undeyraff Comi. i'. State, 29 Ala. 28; Beasley v. 11 S. & R. Pa. 410: In an indict. State, 18 Ala. 535; Grattan . ment for blasphemy, words com State, 71 Ala. 344; Carter r'. Siate, plainerl of should be set out. Com. 55 Ala. 181; Luter ?'. State, 225 W'. 7. Prenner (Anarchist Case), Q. S. 110 (Tex.); 15 Criminal law Mag., Phila., Deceinlver Term, 1891, No. pages 750-56. 494, M. S. S.

Murder.-Little 7'. State, 33 X. Slander.-Davis *'. Suate, 22 S. E. R. 417 (1893), Ind: Indictment W.979, Texas ( 1893): Inforniation fur murder in words of statute. for slander described words spoken Held, bad as not giving circumin presence of P. Complaint had stances. Citing: State r'. Record, stated them as being spoken in 56 Ind. 507; 10 Amer. & Eng. presence of G. Hold, variance. Ency. 522 ; 1 Kest Criminal Prac

Libil.-Miles 7. Statc, 11 So. R. tice, 599-600; Shepherd i'. State, 403. Ala. (1892): la allidavit 54 Ind. 25; Howard i. State, 67 which does not charge an offence, Iud. 401; Thomas ?'. Com. 20 S. does not authorize the issue of a W. 226, Kentucky (1892). warrant and subscquent prosecution. Larceny. --State 7'. Van Cleve, 32 Defendant trier for de faination. Pac. R. 461 (Washington): Naine Affidavit that defendant "malicious of owner material. Amendment ly spoke .... imputing the com not allowed. McCowan . State, mission of a felony by J. W. R." 22 S. W. 955 Ark. (1893) : Indict. While in the words of the act the ment for larceny charging theft of statute does not prescribe with two jackets owned by “Conneevey definiteness the constituents of the & Co.," names of form not stated offence. "The defendant has the Held, insufficient. E. C. R.

DEPARTMENT OF COMMERCIAL LAW.

EDITOR-IN-CHIEF,
FRANK P. PRICHARD, ESQ..

Assisted by 11. GORDON MCCOUCH, Chas. C. BIXXEY, CHAS. C. TOWNSEND,

FRANCIS H. BOHI.KN, OLIVER BOYCE JUDSON.

SUPREME COURT

BRASS AND IKON WORKS Co. v. Payne.'

OF Onio.

Countill-Prenership-Salo-Whal possesfirm name--Right lo nk.

1. The goodwill of a partnership is a part of the property of the fir ; and wlien, on a dissolution of the partnership, one of the partners transfers to the others all liis interest in the firm business and asscts, with the understanding that they are to succeed to the business of the old firm, such sale carries with it the vendor's interest in the good will.

2. The firm name is part of this goodwill, and the right to use it accord. ingly passes to the purchasing partners; and when the contract of sale ruscrues to the retiring partner no right with respect to that naine, le cannot lawfully use it in a business of a like kiud, carried on by him in the vicinity subsequent to such dissolution.

3. In a proper case a court of equity will perpetually enjoin such unlawful use of the firm namc'by the retiring partner.

GOODWILL AS PARTNERSHIP PROPERTY. 1. Ils valure and incidcnls. the business will continue in the (a). According to lon Eldon, in futurc as in the past : Bell v. Ellis, Cruttwell ?'. l.ye, 17 Ven. 335, it is 33 Cal, 620. Every possible advant. "nothing more than the probability age acquired by the firm in carry. that the old customers will resort ing on its business, whether conto the old place." Morcau nected with the premises or the Edwards, 2 Tenn. Ch. 347. Others namc, or other matters : Ginesi v. liavo defined it as "the chance or Cooper, 14 Ch. D. 596; Farwell v. probability that custom will be had Huling. 132 III. 112; and see Pay at a certain place of business in v. Pay (N. J.), 6 Atl. Rep. 12. The consequence of the way in which favor which the management of a that business has been previously business wius from the public, and carried on:" England v. Downs, 6 the probability that old customen Beav. 269. The probability that will continue their patronage: Chit

'Reported in 33 N. E. Rep. 88.

« PreviousContinue »