CHAPTER CCX.

PERJURY AND SUBORNATION OF PERJURY.

9. Indictment for perjury. Alleged, that on the trial of an indictment against J. H., the deft. wickedly devising and intending to injure and aggrieve the said J. H., and to cause him to be wrongfully convicted, did, at said trial, of the said indictment, appear as a witness, and was then and there sworn, &c., and then and there, falsely and maliciously gave false testimony against the said J. H., &c., by falsely deposing, &c., and so the jurors say, that the deft. committed wilful and corrupt perjury. In arrest of judgment, held, this count was bad, for not alleging the deft. wilfully or corruptly swore falsely.

VOL. VII.
CH. 210.
Art. 5.

Con.

Another count alleged, that at the trial of J. H., he was found guilty, by means of false and material testimony of the deft., in the first count mentioned.' That the deft., knowingly, falsely, wilfully, and corruptly, made affidavit, that the evidence given by him at the trial of J. H. was true; whereas, it was false in the particulars, in the first count assigned and set forth.' Held, this count was also bad, as it should have averred distinctly, the deft. was sworn as a witness, and deposed to certain facts, at the trial of J. H., instead of leaving it to be taken by intendment. Rule, nisi for a new trial, made absolute. Abbot, C. 5 Barn. & Cres. 246-250, J., every definition of perjury is swearing wilfully and corruptRex v. ly, that which is false.' Stevens.

ART. 6.

10 Wheat.

v. Almeida and his goods, &c. Con.

§3. In case of piracy, the civil remedy is not merged in the criminal offence, the property of the party robbed is not di- Con. vested by the piratical capture. So was the law even in the time of Croke and Ventris: and as he may recover his property, it seems he may recover the value of it from the goods of the offender, within reach of the admiralty. Even at common law, 473497, such merger was confined to felonies, and by that law, piracy Manroe, &c. was no felony. 1. See index, Slavery; especially ch. 196, a. 8, &c. In- ART. 10. dictment under the slave trade act of April 20, 1818, ch. 373, was against the owner of the ship. The indictment charged, that the deft., Gooding, being a citizen of the United States, after passing the act, &c. to wit, on at the district of Maryland, did fit out for himself, as owner, in the port of B, within the jurisdiction of the United States, and within the jurisdiction of this court, a certain vessel, called the General Winder, with intent to employ the said vessel, the General Winder, in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to another place, to wit, to the Island of Cuba, in the West Indies, to be sold as slaves, contrary to the true intent and meaning of the act of congress,

VOL. VII. in such case made and provided, to the evil example of others, CH. 210. in like case offending, and against the peace, government, and Art. 10. dignity of the said United States; six other counts. Held, 1. Con.

Testimony of the master's declaration being a part of the res gesta, connected with acts in furtherance of the voyage, and within the scope of his authority, as agent of the owner in the conduct of the guilty enterprize, was admissible in evidence, against the owner, on said indictment: 2. Evidence admissible, the owner authorized, and by his agents, superintended the fitment, without being personally present: 3. Not essential to constitute a fitting out, that every equipment necessary for a slave voyage, or any equipment peculiarly adapted to such voyage, should be taken on board. It is sufficient, if the vessel be actually fitted out with intent to be employed in the slave trade: 4. Not necessary to specify the particulars of the fitting United States out; enough to lay the offence in the words of the act: 5. Not v. Gooding, 12 necessary there be a principal offender, aided by the deft.: all 480; 9 Wheat. are principals who are concerned: 6. But necessary to aver, 381, 391, 409; the vessel was built, fitted out, &c., or caused to sail, or be sent 10 Wheat. 66-away, within the jurisdiction of the United States: 7. Fitted out, &c., with intent to employ, &c.: 8. In criminal proceedTrade cases. ings, the onus probandi rests on the prosecutor, generally.

Wheat. 460

133, 11 Wheat.

413, Slave

ART. 1.
Con.

State v. Cole,

&c., 2 Mc Cord, 117.

id.

CHAPTER CCXI.

RIOTS, &c.

§ 5. A negro slave may commit a riot with two white persons: 2 Mc Cord, 462: 2. Three, or more persons assembled for the purpose of patrolling, may, by their conduct, be guilty of a riot : nor can a captain of a beat company, make himself captain of a patrole: 3. Patrollers may be indicted for a riot, at common law, in beating negroes, inter alia, though by the statute, a specific penalty is imposed for the offence of beating negroes. ART. 3. § 3. Revolt in a ship at a foreign port. This was an inCon. dictment for an endeavour to commit a revolt on the high seas, 3 Mason, 475, on board the brig Prudent, Ellis, master. The indictment was United States on 12th section of the act of congress, of April 30, 1790, ch. 9. Keefe. Held, an offence, though committed in a foreign port: nor is it

id.

ART. 4.
Con.

necessary to prove it committed on the high seas: enough to prove it committed in such port. Cited 3 Wheaton, 387; 5 do. 76-103; 1 Mason's R. 147-443, United States v. Hamilton.

11. Dismissing schoolmasters. The superintending school committee have no power to dismiss, unless for one of the causes 3 Greenl. 450- mentioned in the statute of 1821, ch. 117, and this must be by

Art. 4.

Con.

writing under their hands, especially assigning the cause of dis- VOL. VII. missal. Decided in his action, for his salary accrued after his CH. 211. attempted dismission. The third section of the law provides, the said committee, shall have power to dismiss any schoolmaster or mistress, who shall be found incapable or unfit, to teach any school, notwithstanding their having procured the requisite certificate.' As this is a power given to one party only, to vacate a contract, it must be strictly pursued. The superintending committee, are constituted by the statute, a tribunal, to adjudicate upon the unfitness or incapacity of the master.'

141-147, Com

§ 1 con. Form of the indictment at the court of common ART. 5. pleas. States the population, &c.; and neglect to support a Con. grammar school, &c., &c. Plea, not guilty,-appeal &c. Held, 16 Mass. R. 1. No person can be lawfully employed as a town schoolmaster, monwealth v. so as to prevent the town's being indictable, unless he first pro- Inhabitants of duce the evidence of his qualifications required by statute of Dedham. 1789, ch. 19: 2. To constitute a grammar school on the said statute, it must be duly regulated as to the admission of scholars : 3. The master must be engaged to keep a school of that description; as such a grammar school required to be kept by every town having 200 families or householders, must be kept for the use of all the inhabitants of the town.

§ 6. In New York. Statutes, sess. 35, ch. 24; sess. 37, ch. 192; sess. 42, ch. 152; sess. 45, ch. 256: (April 17, 1822.) By these statutes, the inhabitants of school districts are authorized to meet, have a sworn clerk, and vote a tax on the resident inhabitants of it, for building a school-house, &c., and to choose trustees to assess the sum voted, by assessment on the taxable inhabitants, agreeable to the levy on which the town was

taxed the preceding year. Cases decided; Robinson v. Doge,

18 Johns. R. 351; 13 do. 444; 16 do. 135. The district must, in every case, vote an exact sum, and expressly empower the trustees to assess that sum.

7. A town has no power to alter the limits of a school dis- 5. Pick, 323. trict, so as to destroy the corporation without its consent, nor so as to annul or impair contracts made with the corporation.

336, Waldron

v. Lee.

§ 8. April 1828. See mandamus, ch. 186, a. 2. s. 95, points 5 Pick. 323decided: 1. If a person appointed to warn a school district, return he warned the inhabitants, not stating the time or manner of warning, and they meet, and vote to raise a sum of money and this vote is duly certified to the assessors, they are bound to assess the tax, and neither they or the town treasurer can inquire into the regularity of the proceedings antecedent to the meeting: 2. A school district may be assessed on the valuation of property taken in reference to the town taxes, for the same year 3. If, after a tax has been raised, and assessed on the said 82

VOL. IX.

Art. 5.
Con.

VOL. VII. inhabitants, as part of the district, is set off to another district, CH. 211. the inhabitants of such part remain liable to pay such tax, the debt being fixed by the assessment. A man's tax is fixed as a debt, when it is assessed, not when it is voted. By statute 1817, when a great change was made in the capacities of school districts, by that act they were made corporations to sue and be sued, to receive donations, raise monies, &c.: by it, they are placed on the same footing, in regard to the objects for which they are erected, as towns, parishes, or other municipal corporations.'

2 Cranch. 336.

ART. 15. Prosecution of crimes limited to two and three years. § 1. Limitations as to prosecutions, found in the act of congress of April 30, 1790, s. 32, in these words, viz.: that no person or persons shall be prosecuted, tried, or punished for treason, or other capital offences aforesaid, wilful murder and forgery excepted, unless the indictment for the same shall be found by a grand jury, within three years next after the treason or capital offence aforesaid, shall be done or committed: nor shall any person be prosecuted, tried, or punished, for any offence not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same, shall be found, or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture aforesaid, provided that nothing herein contained, shall extend to any person or persons fleeing from justice.'

2. Military prosecutions limited to two years.

88th article in the rules, &c., for governing the armies of the United States, in these words, viz: No person shall be liable to be tried and punished by a general court martial, for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that period.'

3. So offences against the slave acts of congress, must be prosecuted in two years next after committed: see a. 6, this chapter, especially s. 6; and by force of the said act of April 30, 1790, though the slave acts were enacted subsequently.

§4. The act of congress of April 30, 1790, limiting the prosecution on penal statutes, extends to penalties created after, as well as before the act.

CHAPTER CCXII.

CRIMES AFFECTING INDIVIDUALS.

2 con. However small the part burnt, it is arson. 16 Mass R. 105.

VOL. VII.
CH.212.
Art. 4.

Con.

115, People v. Cotterel.

Setting fire to a jail by a prisoner, for the purpose of affecting 18 Johns. R. his escape, is not arson; nor is it wilful burning of an inhabited dwelling house, within the meaning of the first section; ch. 20, sess. 36, though the jail is to be deemed such house within the act.

Arson is severely punished in all the States. In the night time, or being accessary thereto, death, in Maine, in Massachusetts; in Rhode Island, night or day.

In New Hampshire. Arson: solitary imprisonment, not exceeding six months, and labor for life.

In Vermont. Arson of a dwellinghouse or any other building, or of any stacks of corn, hay or grain, hard labor in the State prison, not exceeding ten years, and fine, not exceeding $1000, or either. Death, for arson, where any person suffers death in consequence, or is injured in his or her body, or members.

In Connecticut. Death: causing the death, or endangering the life of any person. Arson common case, State prison, not

exceeding seven years.

In Pennsylvania. Arson: first offence, imprisonment, not less than one, nor more than ten years; second offence, not more then fifteen years.

In New Jersey. Fine, and hard labor not exceeding fifteen years.

In Delaware. Arson burning any dwellinghouse, courthouse, or any office in which public records are kept,-death. In Maryland. Arson: death or penitentiary, not less than five, nor more than twenty years.

Con.

In Virginia. Death. See crimes in Virginia at large. § 2. 1 Nott & Mc Cord, 583, the State v. Ginns, held, to ART. 7. break and enter, by night, a storehouse, in which no one sleeps, and which has no internal communication with the dwellinghouse, and is unconnected with it, except by a fence, is not burglary.

In Maryland. Burglary and accessary before the fact: punishment; restoration of property, or paying the value, and State prison not less than three, nor more than ten years.

In Pennsylvania. First offence, not less than two, nor more than ten years: second offence, not exceeding fifteen years. In New Jersey. Burglary: fine, and confinement to hard labor, not exceeding ten years.

In Delaware. Burglary death.