cases holding the contrary.52 Crime must have been committed by accused in all essentials. In cases of entrapment, however, it must appear of course that the person charged with the offense did himself everything necessary to make out a complete offense against the law.53 Nothing that was done by the person present with the knowledge and consent of the victim will be imputed to the accused; and if, in order to constitute the offense, it is necessary that something done by such person shall be imputed to the accused, then the prosecution will fail.54 So where the person against whom the crime is alleged to have been committed, in setting his trap, waived his legal rights, as where he consented to the act, and the offense requires want of consent on his part, the prosecution will fail.55 Thus where an owner, personally or by his agent, solicits the accused to take property, the taking is plainly by his own procurement and consent, and the taking is therefore not larceny;56 but if the owner of property merely facilitates the taking of the property for the purpose of securing the detection and punishment of the taker, his act does not amount to consent to the taking, and larceny is committed by the taker. Thus the fact that the owner stands by and does not prevent the taking does not violation of a municipal ordinance could not be maintained where the city was instrumental in procuring the sale of the liquor for the purpose of laying a foundation for a suit in which an adjudication as to what would constitute a violation of the ordinance might be procured). 52. Smith v. State, 61 Tex. Cr. 328, 135 SW 154. [a] Sale of intoxicating liquors to an Indian whose identity was concealed, and who was a government decoy, has been held insufficient to sustain a conviction of selling liquor to an Indian. U. S. v. Healy, 202 Fed. 349. prevent the act from being larceny;5 nor does the further fact that the owner so places the property or takes such other steps as to facilitate the taking,58 Instigation and inducement condemned. Although in many of the cases criminal prosecutions have been sustained, where the accused has himself committed the crime charged in all its essential elements, notwithstanding the instigation and holding out of inducements by public officers or detectives for the purpose of entrapment and prosecution,59 the practice has often been condemned by the courts on grounds of public policy, and in a number of cases prosecutions have not been sustained where it appeared that the accused was induced or led to commit the act charged by active coöperation and instigation on the part of public officers or detectives, or on the part of private detectives with their cognizance, for the purpose of instituting a criminal prosecution.60 Nor can an owner aid, encourage, or solicit the commission of a crime against his own property; and where such is the case no offense is committed, because in law one cannot be deemed to be injured by an act which he was instrumental in procuring to be done.62 In considering the question of public policy the clear distinction, founded Ill-Love v. Peo., 160 Ill. 591, | Dist. 857. 43 NE 710, 32 LRA 139. Kan.-State v. Stickney, 53 Kan. 308, 36 P 714, 42 AmSR 284. Mich.-Peo. v. McCord, 76 Mich. 200, 42 NW 1106. Mo.-State v. Loeb, 190 SW 299. N. C.-State v. Goffney 157 N. C. 624, 73 SE 162. Okl.-Roberts v. Terr., 8 Okl. 326, S. C.-State v. Covington, 18 S. C. 84. Tenn.-Dodge v. Brittain, Meigs Tex.-Alexander v. State, 12 Tex. 540; Speiden v. State, 3 Tex. A. 156, 30 AmR 126. Wis.-Topolewski V. State, 130 Wis. 244, 109 NW 1037, 118 AmSR 1019, 7 LRANS 756, 10 AnnCas 627. Eng.-Rex v. Egginton 2 B. & P. 508, 126 Reprint 1410; Reg. v. Johnson, C. & M. 218, 41 ECL 123; Rex v. Macdaniel, 2 East P. C. 665; Rex v. Fuller, R. & R. 302; Rex v. Dannelly, R. & R. 230. 56. Colo. Conner v. Peo., 18 Colo. Ill.-Love v. Peo., 160 I11. 501, 43 Mo.-State v. Waghalter, 177 Mo. 53. Peo. v. Collins, 53 Cal. 185; Dalton v. State, 113 Ga. 1037, 39 SE 468; Love v. Peo., 160 I11. 501, 43 NE 710, 32 LRA 139; State v. Hayes, 105 Mo. 76, 16 SW 514, 24 AmSR 360; State v. Currie, 13 N. D. 655, 102 NW 875, 112 AmSR 687, 69 LRA 405. And see State v. Jansen, 22 Kan. 498, 505 (where it was said: "The act of a detective may, perhaps, not be imputable to the defendant as there is a want of a community of motive. But where each of the overt acts going to make up the crime charged is personally done by the defendant, and with criminal intent, his guilt is complete, no matter what motives may prompt or what acts be done by the party who is with and apparently assisting 4 N. C. 471. him"). Or.-State v. Hull, 33 Or. 56, 54 [a] Larceny.-If the pretended P 159, 72 AmSR 694. accomplice himself takes the goods, Tenn. McAdams v. State, 8 Lea the wrongdoer being present abetting 456. and afterward receiving the goods, there is no criminal taking and therefore no larceny. Williams State, 55 Ga. 391; Edmondson V. State, 18 Ga. A. 233, 89 SE 189; Peo. v. McCord, 76 Mich. 200, 42 NW 1106; State v. Hayes, 105 Mo. 76, 16 SW 514, 24 AmSR 360; McGee v. State, (Tex. Cr.) 66 SW 562; Reg. v. Lawrence, 4 Cox C. C. 438. V. 54. Dalton v State, 113 Ga, 1037, 39 SE 468. 55. Ala. Allen v. State, 40 Ala. 334, 91 AmD 476; Adams v. State, 13 Ala. A. 330, 69 S 357. Cal.-Peo. V. Collins, 53 Cal. 185. N. C.-State v. Adams, 115 N. C. 775, 20 SE 722; Dodd v. Hamilton, Wis.-Topolewski V. State, 130 Eng.-Reg. v. Lawrence, 4 Cox C. 57. Cal.-Peo. v. Hanselman 76 Pa.-Com. v. Dougherty, 37 Pa. Eng.-Rex v. Egginton, 2 B. & P. 58. Fla.-Lowe v. State, 44 Fla. Colo.-Connor v. Peo., 18 Colo. 373, 33 P 159, 36 AmSR 295, 25 LRA 341. Ga.-Edmondson v. State, 18 Ga. A. 117 P 19. 233, 89 SE 189. V. Tex.- Conner v. State, 24 Tex. A. 245, 6 SW 138. Eng. Reg. v. Williams, 1 C. & K. 195, 47 ECL 195. 59. tion. See cases supra this sec60. U. S.-Sam Yick v. U. S., 240 Fed. 60; U. S. v. Healy, 202 Fed, 349; U. S. v. Adams, 59 Fed. 674. Colo.-Wilcox v. Peo., 17 Colo. A. 109, 67 P 343; Ford v. Denver, 10 Colo. A. 500, 51 P 1015. See also supra note 51 [b]. Ga. Dalton v. State, 113 Ga. 1037, 39 SE 468. Iowa. State v. Abley, 109 Iowa 61, 80 NW 225, 77 AmSR 520, 46 LRA 862. La.-State V. Dudoussot, 47 La. Ann. 977, 17 S 685. Mich.-Peo. v. McCord, 76 Mich. 200, 42 NW 1106; Saunders v. Peo., 38 Mich. 218. But compare Peo. v. Liphardt, 105 Mich. 80, 83, 62 NW 1022 (where the court said: "We know of no case that holds that one who has committed a criminal act should be acquitted because induced to do so by another. It is merely when the criminality of the act is shown to be absent by the fact of the inducement that such proof justifies acquital”). Mo.-State v. Ebel, (A.) 188 SW 1132; State v. Hayes, 105 Mo. 76, 16 SW 514, 24 AmSR 360. N. Y.-Peo. v. Mills, 178 N. Y. 274, 70 NE 786, 67 LRA 131. N. D.-State v. Currie, 13 N. D. 655, 102 NW 875, 112 AmSR 687, 69 LRA 405. Tex.-Scott v. State, 70 Tex. Cr. 57, 153 SW 871; Smith v. State, 61 Tex. Cr. 328, 135 SW 154; O'Brien v. State, 6 Tex. A. 665, 7 Tex. A. 181. Wis. Koscak V. State, 160 Wis. 255, 152 NW 181. "Human nature is frail enough at best, and requires no encouragement in wrong-doing. If we cannot assist another and prevent him from [committing crime] we [should] at least abstain from any active efforts in the way of leading him into temptation." Saunders v. Peo. 38 Mich. 218, 222. 61. Love v. Peo., 160 Ill. 501, 43 NE 710, 32 LRA 139; Peo. v. West, 146 Mich. 537, 109 NW 1041. 62. Peo. v. Mills, 91 App. Div. 331, 86 NYS 529 [aff 178 N. Y. 274, 70 NE 786]. on principle as well as authority, is to be observed between measures used to entrap a person into crime, in order, by making him a criminal, to aid the instigator in the accomplishment of some corrupt private purpose of his own, and artifice used to detect persons suspected of being engaged in criminal practices, particularly if such criminal practices vitally affect the public welfare rather than individuals;63 and the same is true if it appears that the intent to commit the crime did not originate with the aceused but was suggested by the person present with him, with the knowledge and approval of the victim.64 38. [58] 5. Necessity. An act which would otherwise constitute a crime is justifiable or excusable if done under necessity.65 It is on this ground that the law justifies or excuses homicide in self-defense or 63. Com. v. Wasson, 42 Pa. Super. [a] Bribery. "The principle evolved from the cases appears to be that in a prosecution for an offence against the public welfare, such as accepting a bribe, the defence of entrapment cannot be successfully interposed; and this is so, when it appears that there was ground of suspicion or belief of the existence of official graft and a conspiracy by officials to obtain bribes, in which the persons caught were not the passive tools of the entrapping party, but knowingly received the bribe, especially since the persons entrapping them had no intention to participate in the wrong." Per Kalisch, J., in State v. Dougherty, 86 N. J. L. 525, 534, 93 A 98 [rev on other grounds 88 N. J. L. 209, 96 A 56, LRA1916 C 991]. See also Burglary § 22. 64. Dalton v. State, 113 Ga. 1037, 39 SE 468; Com. v. Bickings, 12 Pa. Dist. 206, 28 Pa. Co. 271; Scott v. State, 70 Tex. Cr. 57, 153 SW 871. And see Crowder v. State, 50 Tex. Cr. 92, 96 SW 934 (where this rule is recognized). 65. U. S. v. The Diana, 7 Wall. (U. S.) 354, 19 L. ed. 165; The Struggle v. U. S., 9 Cranch (U. S.) 71, 3 L. ed. 660; The James Wells v. U. S., 7 Cranch (U. S.) 22, 3 L. ed., 256; The Mary, 16 F. Cas. No. 9,183, 1 Gall. 206; Com. v. Knox, 6 Mass. 76. "Wherever necessity forces a man to do an illegal act, forces him to do it, it justifies him, because no man can be guilty of a crime without the will and intention of his mind. It must be voluntary." Per Lord Mansfield in In re Stratton, 21 How. St. Tr. 1045, 1223. "An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid the consequences which could not otherwise be avoided, and which, had they failed, would inflict upon him, or upon others whom he was bound to protect, inevitable or irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided." Stephens Dig. Cr. L. art 32 [quot Chesapeake, etc., R. Co. v. Com., 119 Ky. 519 526, 527, 84 SW 566, 27 Ky L 176 (cit Cyc)]. 66. See Homicide [21 Cyc 800 et seq]: Larceny. 67. See cases infra this note. [a] Illustrations. (1) Thus, where a crew on board a vessel refused to proceed with the journey and refused to sail the vessel unless the vessel was returned to the start ing port, because the vessel was leaky, it was held that they were not guilty of mutiny. U. S. v. Ashton, 24 F. Cas. No. 14,470, 2 Sumn. 13. (2) And it was held that a vessel which during the existence of our embargo laws departed from one port 66 to save life, or the taking of another's property when it is necessary to save life; but the rule also applies in many other cases.67 [59] 6. Duress or Compulsion.68 An act which would otherwise constitute a crime may also be excused on the ground that it was done under compulsion or duress.69 compulsion or duress. The compulsion which will excuse a criminal act, however, must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done.70 A threat of future injury is not enough.71 Such compulsion must have arisen without the negligence or fault of the person who insists upon it as a defense.72 Under a statute requiring that the party threatening shall be actually present, such proximity to the place of the crime as to have control over the person death or grievous bodily harm, it constitutes duress which will excuse the participator from criminal prosecution and § 2392 providing that the killing of a human being without design to effect death by a person engaged in the commission of a robbery is murder in the first degree, where a person participates in a robbery which ends in the murder of the person robbed by one of the persons associated with him, the participation in the robbery under duress is not a defense in the prosecution for murder. State v. Moretti, 66 Wash., 537, 120 P 102. in the United States on a voyage to another, but was obliged from irresistible necessity to put into a foreign port, and to sell her cargo, was not guilty of a violation of those laws. The William Gray, 29 F. Cas. No. 17,694, 1 Paine 16. (3) So where a foreign vessel was wrecked on the American shore, and the crew landed and sold the tackle, apparel, and furniture of the vessel, separate from the hull, this was held not to be a violation of the revenue_laws. The Gertrude, 10 F. Cas. No. 5,370, 3 Story 68. (4) And on an indictment for nonrepair of a highway, it was held a good defense that the sea had encroached upon the highway, washed away the earth and soil, and rendered it impossible to repair the same. Reg. v. Bamber, 5 Q. B. 279, 48 ECL 279, 114 Reprint 1254. (5) A person whose wagon was stopped in the street by the crowding of other vehicles does not violate a city ordinance prohibiting the owner or driver of a wagon from suffering it to stop in a street longer than a certain time. Com. v. Brooks, 99 Mass. 434. 68. Cross references: Acting under direction or authority see supra § 56. Coercion of wife by husband see Husband and Wife [21 Cyc 1355]. Homicide under compulsion see Hom- Killing by soldier see Homicide [21 Larceny under duress see Larceny 69. Peo. v. Repke, 103 Mich. 459, 61 NW 861; Respublica v. McCarty, 2 Dall. (Pa.) 86, 1 L. ed. 300; Morgan v. State, 3 Sneed (Tenn.) 475: Paris v. State, 35 Tex. Cr. 82, 31 SW 855; Rex v. Crutchley, 5 C. & P. 133, 24 ECL 490; MacGrowther's Case, Fost. 13. 70. U. S.-U. S. v. Vigol, 28 F. Cas. No. 16,621, 2 Dall. 346. Cal.-Peo. v. Martin, 13 Cal. A. 96, 108 P 1034. Ga.-Burns v. State, 89 Ga, 527, 15 SE 748; Pirkle v. State, 11 Ga. A. 98, 74 SE 709. Ind.-Ross v. State, 169 Ind. 388, 391, 82 NE 781 [cit Cyc]. Miss.-Bain v. State, 67 Miss. 557, 7 S 408. Pa.-Respublica v. McCarty, 2 Dall. 86, 1 L. ed. 300. Tex.-Burton v. State, 51 Tex. Cr. 196, 101 SW 226. See also Peo. v. Repke, 103 Mich. 459, 61 NW 861; Morgan v. State, 3 Sneed (Tenn.) 475; McGrowther's Case, Fost. 13 (all three cases discussing this rule). "We can conceive of cases in which an act, criminal in its nature, may be committed by one under such circumstances of coercion_as to free him from criminality. The impending danger, however, should be present, imminent and impending, and not to be avoided. The social system would be subverted and there would be no protection for persons or property if the fear of man, needlessly and cravenly entertained, should be held to justify or excuse breaches of the criminal laws." Bain v. State, 67 Miss: 557, 560, 7 S 408. "It must be obvious to the deliberate judgment of every reflecting mind that much less freedom of will is requisite to render a person responsible for crime than to bind him by a sale or other contract. To overcome the will so far as to render it incapable of contracting a civil obligation, is a mere trifle compared with reducing it to that degree of slavery' and submission which will exempt from punishment." McCoy v. State, 78 Ga. 490, 497, 3 SE 768. "An act which if done willingly would make a person a principal in the second degree or an aider and abetter in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him or to do him grievous bodily harm if he refused, but threats of future injury, or the command of any one not the husband of the offender, do not excuse any offense." Stephen 71. Peo. v. Martin 13 Cal. A. 96, Dig. Cr. L. art 31 [quot Ross State, 169 Ind. 388, 390, 82 781]. V. NE [a] Murder while engaged in robbery. - In Washington, under Remington & B. Code, § 2256, providing that whenever any crime except murder is participated in by two or more persons and the participation of one is under compulsion under a reasonable apprehension that in case of refusal he is liable to instant 108 P 1034; Peo. v. Repke, 103 Mich. 459, 61 NW 861 (holding that, in a prosecution for murder, proof of a threat to take the life of the accused, unless he should assist in the perpetration of the crime, made three days before the crime was committed, was no defense). And see other cases supra note 70. 72. Gillett Cr. L. (2d ed) § 7 [quot Ross v. State, 169 Ind. 388, 390, 82 NE 781]. of each particular offense.81 83 [61] 8. Condonation and Settlement. Whether an act is a crime is determined in general solely by the conduct and intent of the actor 84 at the time of the commission of the act; and therefore the fact that the person who was injured by the commission of a crime has condoned the offense or made a settlement with defendant or with some third person in his behalf does not relieve defendant or bar a prosecution by the state,85 unless there is a statutory provision to such effect.86 Thus as a rule it is no defense, on a prosecution for larceny, embezzlement, false pretenses, and other offenses of a like kind, that defendant has made reparation for his criminal conduct, as by restoring or paying for the property.87 The status of an act as a crime is fixed when it is once completed, and that status cannot be changed by the subsequent act of the criminal or tery, 147 Mass. 423, 18 NE 399. [60] 7. Consent and Ratification. It is beyond the power of a private person to license the commission of a crime.77 As to the more serious crimes which are purely transgressions of the public right, it must follow that consent thereto of private persons directly injured thereby cannot, to any extent, purge such crimes of their character as public wrongs, nor render those who commit them less liable to punishment.78 But to this general principle there are exceptions. "There are acts which the law makes criminal when, and because done without consent, the doing of which with consent is not criminal';79 and in these cases therefore consent of the person against whom the offense is alleged to have been committed is necessarily a defense.80 Whether or not consent is a defense depends on the character 73. Paris v. State, 35 Tex. Cr. 82, | [quot State v. West, 157 Mo. 309, 31 SW 855. 57 SW 1071]. 74. Peo. v. Richmond, 29 Cal. 414; Carlisle V. State 37 Tex. Cr. 108, 38 SW 991. See also supra § 56. 75. Thomas v. State, 134 Ala. 126, 33 S 130; Peo. v. Richmond, 29 Cal. 414; Com. v. Hadley, 11 Metc. (Mass.) 66. See also supra § 56. 76. U. S. v. Carr, 25 F. Cas. No. 14,732, 1 Woods 480; U. S. v. Jones, 26 F. Cas. No. 15,494, 3 Wash. C. C. 209; Com. V. Blodgett, 12 Metc. (Mass.) 56. See also supra § 56; and Homicide [21 Cyc 798]. 80. Applications or rule see Burglary § 21; Larceny [25 Cyc 381; Rape [33 Cyc 1423]; Robbery [34 Cyc 1801]. 81. State v. West, 157 Mo. 309, 57 SW 1071 (train robbery). 83. Holsey v. State 4 Ga. A. 453, 61 SE 836. 82. May v. State, 115 Ala. 14, 22 S 611 (holding that, under Code § 3835, making it a crime to remove or to sell personal property with the purpose of hindering, delaying, or defrauding one who has a lawful claim thereto, with knowledge of [a] "A soldier is bound to obey such claim, ratification, by the claimonly the lawful orders of his su-ant is no defense). And see cases periors. If he receives an order to infra § 61. do an unlawful act he is bound neither by his duty nor his oath to do it. So far from such an order [a] For example, a conviction for being a justification, it makes the willfully riding or driving the horse party giving the order an accomplice of another in violation of a statute in the crime. For instance, an order (Pen. Code [1895] § 225), cannot be from an officer to a soldier to shoot sustained where defendant offers to another for disrespectful words settle the matter by paying in full merely would, if obeyed, be murder, for the animal, and a sale of the both in the officer and soldier." U. S. animal is thus effected; the transacv. Carr, 25 F. Cas. No. 14,732, 1tion on the part of accused being Woods 480, 483. thus ratified by the owner of the animal. Sanders V. State, 4 Ga. A. 850, 62 SE 567; Holsey v. State, 4 Ga. A. 453, 61 SE 836. [b] In Georgia (1) the rule has been somewhat modified. Under ordinary circumstances the inferior is liable. Hately V. State, 15 Ga. 346. (2) But it has been held that, in time of war, the orders from a superior are those of a despot and must be obeyed, and under such circumstances the inferior is not liable. Clark v. State, 37 Ga. 191. 77. State v. West, 157 Mo. 309, 57 SW 1071; Davis v. State, 70 Tex. Cr. 524, 158 SW 288. [a] "The reason is," said Mr. Wharton, "that parties cannot by consent cancel a public law necessary to the safety and morality of the state. Jus publicum privatorum voluntate mutari nequit." 1 Wharton Cr. L. (11th ed) § 182. 78. State v. West, 157 Mo. 309, 57 SW 1071; Ex p. Galbreath, 24 N. D. 582, 139 NW 1050; Davis v. State, 70 Tex. Cr. 524, 158 SW 288. [a] A criminal offense is one against the sovereign state, and not against the complaining witness, and acquiescence of the latter does not constitute acquiescence or consent on the part of the state. Ex p. Galbreath, 24 N. D. 582, 139 NW 1050. Applications of rule see Abduction § 9: Abortion § 21; Assault and Battery § 24; Seduction [35 Cyc 1339 text and note 16]. 79. 1 Bishop New Cr. L. § 258 84. Peo. v. Gardner, 144 N. Y. 85. U. S.-U. S. v. George, 25 F. Ark.-Donohoe V. State, 59 Ark. Cal.-Peo. v. De Lay, 80 Cal. 52, 22 P 90. Fla. Wooldridge v. State, 49 Fla. 137, 38 S 3; Thalheim v. State, 38 Fla. 169, 20 S 938. Ga.-Williams V. State, 105 Ga. 606, 31 SE 546; Robson v. State, 83 Ga. 166, 9 SE 610; Statham v. State, 41 Ga. 507; McCoy v. State, 15 Ga. 205. Ida.-State v. Fowler, 13 Ida. 317, 89 P 757. Ind-Dean v. State, 147 Ind. 215, 46 NE 528; State v. Bain, 112 Ind. 335, 14 NE 232. Iowa.-State v. Whalen, 98 Iowa 662, 68 NW 554. La.-State v. Frisch, 45 La. Ann. 1283, 14 S 132; State v. Thompson, 32 La. Ann. 796. Mass.-Com. v. Brown, 167 Mass. 144, 45 NE 1; Com. v. Kennedy, 160 Mass. 312, 35 NE 1131; Com. v. Slat Mo.-State v. Tull, 119 Mo. 421, 24 SW 1010; State v. Noland, 111 Mo. 473, 19 SW 715; State v. Pratt, 98 Mo. 482, 11 SW 977. 17. Or.-Saxon v. Conger, 6 Or. 388. Tex.-Countee v. State, (Cr.) 33 SW 127; Schultz v. State, 5 Tex. A. 390. Va.-Barker v. Com., 90 Va. 820, 20 SE 776. Wyo.-Ivinson v. Pease, 1 Wyo. 277. N. B.-Rex v. Strong, 43 N. B. 190, 26 DomLR 122, 24 CanCrCas 430. [a] State's interest paramount.When a crime has been committed. there is no longer a controversy between the criminal and the person injured by his acts. It is now a controversy between the state and the criminal which the state will not permit the injured party to determine; nor will the state acknowledge the validity of any settlement brought about by such person. Fleener v. State, 58 Ark. 98, 23 SW 1. And see other cases supra this note. Applications of rule see Embezzlement [15 Cyc 507]; False Pretenses [19 Cyc 419]; Forgery [19 Cyc 1411]: Larceny [25 Cyc 54]: Rape [33 Cyc 1438]; Seduction [35 Cyc 1339]. 86. See infra this section; and Seduction [35 Cyc 1339]. 87. Ark.-Fleener V. State, 58 Ark. 98, 23 SW 1. Cal.-Peo. v. De Lay, 80 Cal. 52, 22 P 90 (applying Pen. Code § 513). Fla.-Thalheim V. State, 38 Fla. 169, 20 S 938. Ga.-Williams v. State 105 Ga. 606. 31 SE 546; Robson v. State, 83 Ga. 166, 9 SE 610; Hoyt v. State, 50 Ga. 313; McCoy v. State, 15 Ga. 205. Nebr.-Whitney v. State, 53 Nebr. 287, 73 NW 696. N. Y.-Fagnan v. Knox, 66 N. Y. 525. Tex.-Robinson v. State, 63 Tex. Cr. 212, 139 SW 978. [a] An offer to make restitution, although made before indictment, is no defense. U. S. v. Gilbert, 25 F. Cas. No. 15,205; Meadowcroft v. Peo., 163 II. 56, 45 NE 303, 35 LRA 176, 54 AmSR 447; Dean v. State, 147 Ind. 215, 46 NE 528; State v. Pratt, 98 Mo. 482. 11 SW 977; Shinn V. Com., 32 Gratt. (73 Va.) 899. Applications of rule see Embezzlement [15 Cyc 508]: False Pretenses of third persons. 88 This rule, however, does not necessarily apply to misdemeanors.89 By statute in some jurisdictions, and it seems even at common law, the fact that certain misdemeanors, like assault and battery for example, have been condoned or compromised may be proved in defense.90 [62] 9. Alibi.91 An alibi is a perfect defense.92 92 Such defense does not, in theory, deny that the crime was committed, but is designed to prove that defendant during the whole time was so far from the place where the crime was committed that he could not have participated in it.93 [63] 10. Wrongful Act or Contributory Neg[19 Cyc 418]; Forgery [19 Cyc 1411]; Larceny [25 Cyc 54]. 88. McCoy v. State, 15 Ga. 205, 211; Com. v. Tobin, 108 Mass. 426, 11 AmR 375. "The Law under which he [the defendant] was indicted, as we have seen, made him a complete criminal, the moment he converted the proceeds to his own use; and after that, no act of his, or of the person whom he had wronged, could excuse him from that complete crime-neither the payment over of the proceeds of sale, or the payment of the value of the horse, or the payment of any amount of money, or the doing of any other thing. The most that any of these acts could have accomplished would have been the compounding of a felony." McCoy State, supra. V. 89. See cases infra note 90. 90. Statham v. State, 41 Ga. 507; McDaniel v. State, 27 Ga. 197; Holsey v. State, 4 Ga. A. 453, 61 SE 836; Cleveland v. Cromwell, 110 App. Div. 82, 96 NYS 475; Saxon v. Conger, 6 Or. 388; Rushworth V. Dwyer, 1 Phila. (Pa.) 26. See also Peo. v. Bishop, 5 Wend. (N. Y.) 111 (holding that, under the statute, an assault and battery could be compromised either before or after indictment, but not after a conviction). ligence of Person Injured. As a crime is punished because of the offense against society, it is ordinarily no defense that the victim of the crime was also guilty of wrongdoing in the particular transaction out of which the offense arose.94 Nor does the contributory negligence of a person injured or killed by the criminal negligence of another constitute a defense in favor of the latter.95 Iowa.-State v. McGarry, 111 Iowa 709, 83 NW 718. La.-State v. Caymo, 108 La. 218, 32 S 351. Mo.-State v. 105, 59 SW 83. McGinnis, 158 Mo. [64] 11. Religious Doctrine or Belief. As a general rule the religious doctrine or belief of a person cannot be recognized or accepted as a justification or excuse for his committing an act which is a criminal offense under the law of the land.90 Ill.-Peo. v. Conners, 246 Ill. 9, guilty of manslaughter in point of 92 NE 567; Peo. v. Lukoszus, 242 law, though it may be that he ought Ill. 101, 89 NE 749; Ackerson v. Peo., not to be severely punished." In 124 Ill. 563, 16 NE 847; Miller v. Reg. v. Swindall, 2 C. & K. 230, 232, 61 Peo., 39 III. 457. ECL 230, which was a similar case, Pollock, C. B., said: "The prisoners are charged with contributing to the death of the deceased, by their negligence and improper conduct, and if they did so, it matters not whether he was deaf, or drunk, or negligent, or in part contributed to his own death; for in this consists a great distinction between civil and criminal proceedings." After alluding to the rule of contributory negligence in civil cases, the learned baron continued: "But, in the case of loss of life, the law takes a totally different view the converse of that proposition is true; for there each party is resposible for any blame that may ensue, however large the share may be; and so highly does the law value human life, that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person." N. M. Tais v. Terr., 94 P 947. [b] In order to constitute a com- 94. Nation v. District of Columbia, 34 App. (D. C.) 453, 26 LRANS 996 (holding that it is no defense to a criminal prosecution for willfully breaking and destroying bottles containing intoxicating liquor that the owner had no license to sell such liquor); State v. Posey, 88 S. C. 313, 70 SE 612. See also Embezzlement [15 Cyc 508]: False Pretenses [19 Cyc 418]; Larceny [25 Cyc 43]. [a] In Alaska, under the express [c] Crime involving several acts. provisions of Code § 254, authorizing-Where several defendants were dismissal of a criminal prosecution charged with burning stacks of hay on the acknowledgment of the com- about a mile apart, the evidence of plaining witness that he has received alibi should cover the whole time of satisfaction for the injury, etc., the setting of the fires, so as to renwhether the prosecution should be der it impossible or very improbable, stayed and the charge dismissed on that defendants, or any of them, such acknowledgment is within the could have committed the act. Creed discretion of the trial court. Noble v. Peo., 81 Ill. 565. v. U. S., 190 Fed. 538, 111 CCA 370. [b] In Pennsylvania, under P. L. (1860) p 427 § 9, permitting a settlement in certain classes of misdemeanors between complainant and the offender, at the discretion of the examining magistrate, or of the court, it is essential to such settlement that complainant shall acknowledge to have received satisfaction for such injury and damages, and until that is done there is no settlement, and neither partial settlement by defendant, nor an agreement falling short of an acknowledgment of satisfaction in the manner provided by the act, bars a prosecution for the criminal offense. Com. V. Radinowiez, 39 Pa. Super. 173; Com. v. Carr, 28 Pa. Super. 122. 91. Alibi defined see Alibi 2 C. J. p 1033. Burden of proof see infra § 1004. 92. Smith v. State, 3 Ga. A 803, 61 SE 737. [a] It is not an extrinsic defense, but a traverse of a material averment of an indictment, that defendant did then and there the particular act charged. State v. Taylor, 118 Mo. 153, 24 SW 449. 93. Del.-State v. Massey, 25 Del. 501, 82 A 243; State v. Roberts, 25 Del. 140, 78 A 365. Ga.-Williams V. State, 123 Ga. 138, 51 SE 322; Harris v. State, 120 Ga. 167, 47 SE 520; Ware v. State, 67 Ga. 349; Wright v. State, 34 Ga. 110. 95. Bowen v. State, 100 Ark. 232; Belk v. Peo., 125 Ill. 584, 17 NE 744; State V. Moore, 129 Iowa 514, 106 NW 16; Reg. v. Kew, 12 Cox C. C. 355; Reg. v. Ledger, 2 F. & F. 857. In Reg. v. Longbottom, 3 Cox C. C. 439, 440, which was an indictment for homicide by recklessly driving over the deceased, Rolfe, B., said: "Whatever may have been the negligence of the deceased, I am clearly of opinion that the prisoners would not be thereby exonerated from the consequences of their own illegal acts, which would be traced to their negligent conduct, if any such existed. . . There is a very wide distinction between a civil action for pecuniary compensation for death arising from alleged negligence and a proceeding by way of indictment for manslaughter. The latter is a charge imputing criminal negligence, amounting to illegality; and there is no balance of blame in charges of felony, but wherever it appears that death has been occasioned by the illegal act of another, that other is [a] Automobile accident. The doctrine of contributory negligence has no place in a prosecution for manslaughter resulting from an automobile accident on the public streets. Bowen v. State, 100 Ark. 232, 140 SW 28. 96. U. S.-Miles v. U. S., 103 U. S. 304, 26 L. ed. 481; Reynolds v. U. S., 98 U. S. 145, 25 L. ed. 244. Ala-Frolickstein V. Mobile, 40 Ala. 725. Ark. Shover v. State, 10 Ark. 259. Md.-Bode v. State, 7 Gill 326. Oh.-Bloom v. Richards, 2 Oh. St. S. C.-Charleston v. Benjamin, 33 V. Eng.-Reg. v. Good, 1 C. & K. 185, 47 ECL 185; Reg. v. Hoatson, 2 C. & K. 777. 61 ECL 777; Reg. Downes, 13 Cox C. C. 111. See also Reg. v. Downes, 13 Cox C. C. 111 (where it was said: "The [statute] has imposed a positive and absolute duty on parents, whatever their conscientious or superstitious opinions may be, to provide medical aid for their infant children in their custody. The facts show that the prisoner thought it was irreligious to call in medical aid, but that is no excuse for not obeying the law"). "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil 94 [16 C. J.] he lived CRIMINAL LAW 1 apply to the pardoning power, where the power of pardoning before conviction exists;99 or, where the pardoning power cannot act before conviction, after conviction of the accomplice to suspend sentence so that an application to the pardoning power may be made. This right to immunity from prosecution, or to a pardon, is equitable merely, based on the pledged faith of the public, and does not entitle the accomplice as a matter of right to have an indictment against him dismissed, or to plead the promise of immunity as a bar. In case of his subsequent conviction he is not entitled to have judgment ar Power under such circum- | 1114. State's Evidence9—a. [§ 65] 12. Furnishing Right to Immunity or Discharge. When an accomplice is examined as a witness for the prosecution and fully and fairly discloses the guilt of himself and his associates, there is an implied promise, as generally regarded, that he will not be prosecuted for the offense, or that a pardon will be granted him.98 Where an accomplice is entitled to immunity, the proper practice seems to be either to enter a nolle prosequi to the indictment against him if he has been indicted, or for the court to continue sometimes proclamation the case against the accomplice so that he may special promised pardon to accomplices upon government under which could not interfere to prevent a sacAccomplices coming withrifice Or if a wife religiously becondition that they would furnish lieved it was her duty to burn herevidence to convict their associates mation were said, by Lord Mansfield, Rex v. self upon the funeral pile of her dead in crime. to have a right to a pardon. husband, would it be beyond the in the provisions of such a procla1. State v. Graham, 41 N. J. L. Rudd, Cowp. 331, 98 Reprint power of the civil government to prevent her carrying her belief into So here, as a law of the 15, 32 AmR 174. practice? [a] Mr. Bishop has suggested that (2) But where a prisoner under sentence for murder pleaded, upon being asked why sentence should not organization of society under the exthe United in such a case the prisoner be perof clusive dominion States, it is provided that plural mitted to plead guilty, under an arCan rangement with the prosecuting of- pronounced against him, such a procand thereby entitled marriages shall not be allowed. excuse his practices to the ficer that he may retract his plea and lamation, and that he had given such himself to a pardon, Lord Denman was only entitled to contrary because of his religious be- plead one to the merits if his appli- information lief? To permit this would be to cation for a pardon prove unsuccessful. Bishop New Cr. Proc. (2nd ed.) held that he See also U. S. v. Ford, have time granted to him to apply make the professed doctrines of re§ 1076 note. ligious belief superior to the law of the land, and in effect to permit 99 U. S. 594, 25 L. ed. 399 (where to the pardoning power, and he exin Rex v. Rudd, Cowp. 331, 98 "The counsel But see State v. Lyon, 81 N. every citizen to become a law unto such practice is suggested with ap- plained the remark of Lord Mansfield exist proval). could himself. Government circum- C. 600, 603, 31 AmR 518 (where the print 1114, as follows: under such name If only in stances." Reynolds v. U. S., 98 U. court said: "The suggestion does not commend itself to our approval. S. 145, 166, 25 L. ed. 244. 97. Constitutionality of immunity the record discloses the entire trans[40 Cyc action, the application could not be see Witnesses statutes entertained, since there has been no 2543]. such conviction as the constitution contemplates; and if the supposed outside arrangement is withheld, it is an attempted evasion of a plain provision of law and makes the record present an incomplete and untruthTo this ful statement of the facts. no judicial tribunal should be a party. In such case the power to relieve and the responsibility for its exercise must remain in the sound discretion of the prosecuting officer where the law places them"). a man 98. U. S.-U. S. v. Ford, 99 U. S. 594, 25 L. ed. 399; U. S. v. Hinz, 35 Fed. 272, 13 Sawy. 266; U. S. v. Lee, 26 F. Cas. No. 15588, 14 McLean, 103; U. S. v. Hartwell, 26 F. Cas. No. See 15,319; 121 Int. Rev. Rev. 50. also U. S. v. Lancaster, 44 Fed. 896, 10 LRA 333 (dictum). Ala.-Long v. State, 86 Ala. 36, 5 S 443. Mass.-Com. v. Knapp, 10 Pick. 477, 20 AmD 534. Mo.-Peo. v. Faulkner [cit State v. Guild, 149 Mo. 370, 376, 50 SW 909, 73 AmSR 395]. N. J.-State v. Graham, 41 N. J. L. 15, 32 AmR 174. N. Y.-Peo. v. Whipple, 9 Cow. 707. N. C.-State v. Lyon, 81 N. C. 600, 31 AmR 518. Tex.-Camron v. State, 32 Tex. Cr. 180, 22 SW 682, 40 AmSR 763. Eng.-Rex v. Rud, Cowp. 331, 98 Reprint 1114. 2. U. S.-U. S. v. Ford, 99 U. S. 594, 25 L. ed. 399; U. S. v. Hartwell, 26 F. Cas. No. 15,319, 12 Int. Rev. Rec. 50. See also Ex p. Irvine, 74 Fed. 954 (dictum). Ala.-Long v. State, 86 Ala. 36, 5 S 443. Md.-Lowe v. State, 111 Md. 1, 73 Mass.-Com. v. St. John, 173 Mass. Eng.-Rex v. Rudd, Cowp. 331, 98 [a] The federal courts (1) are in- [a] In Virginia, according to an early case, it seems that an accomplice testifying for the commonwealth, and though fully and fairly disclosing his own guilt and that of his associates, is not equitably entitled to a pardon. Com. v. Dabney, 1 Rob. (40 Va.) 754, 40 AmD 717. [b] Failure to convict defendant.An accomplice testifying fully and freely in behalf of the prosecution is prosecuting attorneys to grant imto immunity,munity to a defendant turning state's entitled U. S. v. Lee, 26 F. Cas. No. equitably although defendant against whom he evidence. U. S. v. 15,588, 4 McLean 103, 105; U. S. v. (2) testified was not convicted, Lee, 26 F. Cas. No. 15,588, 4 McLean Roelle, 27 F. Cas. No. 16,186. "The government is bound in honor, to carry circumstances, 103. arrangeunder the out the understanding or ment, by which the witness testified, and admitted, in so doing, his own turpitude. Public policy and the great ends of justice require this of the court. 99. U. S. v. Ford, 99 U. S. 594, 604, 25 L. ed. 399; U. S. v. Hinz, 35 Fed. 272, 13 Sawy. 266; U. S. v. Lee, 26 F. Cas. No. 15,588, 4 McLean 103; Lowe v. State, 111 Md. 1, 73 A 637, 24 LRANS 439, 18 AnnCas 744. "Where the power of pardon exists before conviction as well as after, no such difficulties can arise, as the prisoner, if an attempt is made to put him to trial in spite of his equitable right to pardon, may move that the trial be postponed, and may support his motion by his own affidavit, when the court may properly insist to be informed If the district attorney shall fail to enter a nolle prosequi on the indictment . . . the court will continue the cause until an application can be made for a pardon. The court would suggest that to discontinue the prosecution is the shorter and better mode." U. S. v. Lee, supra. [b] In England (1) the king by be Re conthe tended that, by the terms of [c] In Scotland the privilege of the accomplice who testifies for the prosecution is said to be absolute. 2 Alison C. L. p 453. [d] Discretion of public prosecutor.-It is "within the exclusive discretion of this officer to determine be permitted to become 'state's eviwhether or not an accomplice shall dence,' as it is sometimes expressed; and also whether, if he does, he is done.' Per Bennett, J., in Runnels afterward entitled to be no further prosecuted by reason of what he has v. State, 28 Ark. 121, 123. 3. U. S.-U. S. v. Ford, 99 U. S. 594, 25 L. ed. 399. Ala.-Martin v. State, 136 Ala. 32, 250. 225. Md.-Lowe v. State, 111 Md. 1, 73 Mass.-Com. v. St. John, 173 Mass. A 637, 24 LRANS 439, 18 AnnCas 744. 39 NE 513. 162 Mass. Com. V. Plummer, 147 Mass. 566, 54 NE 254, 73 AmSR 321; Com. v. Burrough, 601, 18 NE 567; Com. v. Woodside, 184; 105 Mass. 594; Com. v. Denehy, 103 later cases, developments |