Journal of Criminal Law and CriminologyVolume 23Issue 3 September--October Article 11

Fall 1932

Recent Criminal Cases

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Recommended CitationRecent Criminal Cases, 23 Am. Inst. Crim. L. & Criminology 479 (1932-1933)

RECENT CRIMINAL CASES

Edited by theSTUDENT PUBLICATIONS BOARD oF

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

DAVID SAMPSELL, Chairman

OSCENITY -PRODUCTION OF OB-SCENE PLAY.-[New York] Thedefendants were prosecuted for aviolation of the Penal Law (sec.1140-a, Consol. Laws, c. 40) pro-hibiting the production of obsceneplays. They had dramatized anancient folk song by the name of"Frankie and Johnnie" which nar-rates the adventure of Johnnie, acountry lad, in a resort for drink-ing, gambling and prostitution inthe middle of the last century. TheNew York Court of Appeals findsitself sharply divided in renderingits decision. Judge Pound, whowrites the majority opinion, sup-ported by Judges Cardozo, Lehmanand Kellogg, is of the belief thatthe plot and language of the playundoubtedly make it an "indecent"dramatic composition. However, hedeclares that the Court is not acensor of plays or a regulator ofmanners. "The question is whetherthe tendency of the play is to excitelustful and lecherous desire," saysJudge Pound, "not whether thescene is laid in a low dive whererefined people are not found andwhere the language is that of thebarrom rather than the parlor."The question is whether young peo-ple who would see this play -wouldtend to have their standards ofright and wrong lowered, particu-larly as to the sexual relation. Thequestion is not whether youth might

NEwMAN F. BAKER, Faculty Adviser

be coarsened or vulgarized by theplay. Continuing, Judge Pound be-lieves that the production does notcome within the statute merely be-cause it uses the language of thestreet and not that of the scholar.Nor does a stage representation ofprostitutes and their patrons in it-self make a play obscene. In con-clusion, however; the court issuesa word of warning-"We do notpurpose to sanction indecency onthe stage by this decision or to letdown the bars against immoralshows or to hold that the depictionof scenes of bawdry on the stage isto be tolerated."

The minority, in the instant case,make known their dissent but fur-nish no opinion to support it. Itis not known why Judges Crane,O'Brien, and Hubbs do not concur.Perhaps, the subtle distinctionsdrawn by the majority do not ap-peal to them. They would condemna play tending to "coarsen or vul-garize -youth." To them a stageportrayal of women carrying on avicious trade, surrounded by theirmale associates, is probably suffi-cient to arouse judicial disfavor, tosay nothing of depicting the intro-duction of an unsophisticated coun-try boy like Johnnie into such anenvironment: People v. Wendlinget al (New York, 1932), 258 N. Y.451, 180 N. E. 169.

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Whatever may be the reasonswhich move the minority, this de-cision clearly is of the greatest im-portance, coming as it does fromone of the most capable of the statecourts. A case concerning obscen-ity does not involve a Federal ques-tion and is unlikely to come withinthe jurisdiction of the UnitedStates Supreme Court.

Censorship of one kind or anotherhas always existed. It flourished inhalf savage peoples, in ancientChina, in Greece, and in Rome:"Encyclopedia of the Social Sci-ences" (1931), Vol. 3 under "Cen-sorship," p. 290. At first the prob-lem was primarily a religious one.However, with the development ofthe Roman state political censor-ship was established in order toprotect and preserve the govern-ment: Grant and Angoff "Massa-chusetts and Censorship" (1930) 10Boston University Lav Review 51,52. "The censor, in ancient Rome,was a feared and mighty magis-trate. As census taker, he couldexclude from the privileged censusoi citizens those he censured asbad characters. Hence he becamea despotic superintendent of privateas well as public conduct and mor-als": Rosenberg "Censorship inthe United States" (1928) 32 LawNotes 50; Ferrero "Charactersand Events of History of theRomans" in Lowell Lectures, 1922Reprint, p. 24; Plutarch "Life ofMarcus Cato," Part XVII. Forcenturies political censorship of thesternest kind was taken as a matterof course. Even as late as 1516Sir Thomas More in his "Utopia"proposed an ideal state whereincriticism of the governing powerswas to be punishable by death. Itwas only after a number of Euro-pean revolutions and a gradual in-tellectual evolution that freedom

from the censor began to be feltpolitically. Censorship entered up-on its third and last phase whenthe idea that obscenity could bepunished took root in Anglo-Saxonlaw. Not until well into the 18thcentury was it thought "that a merewriting could be other than a directoffense against church and state":Grant and Angoff "Massachusettsand Censorship" (1930) 10 BostonUniversity Law Review 51; King v.Curl (1715) 2 Str. 789. This caseestablished obscenity 'as a crime atcommon law. Over a hundred yearslater Lord Chief Justice Cockburnattempted to lay down a test ofobscenity, which has ever sincecaused difficulty because of its in-adequacy: Regina v. Hicklin,(1868) L. R. 3 Q. B. 360. Thistest was "whether the tendency ofthe matter charged as obscenity isto deprave and corrupt those whoseminds are open to such immoral in-fluences, and into whose hands apublication of this sort may fall."Cockburn's standard was unfor-tunately adopted in England, Can-ada, and the United States. It wastoo broad. "By this rule, that whichwould deprave any person whosemind was open to depravity wasobscene. One living person pos-sessing such a mind would embracethe matter within the law. Theadditional requirement that suchperson must be one into whosehands the publication might fall,afforded little solace. The mostexpensive work circulating amonga very limited class of people, as-suming that all the people in thatparticular class were virtuous,might be lost or stolen, fallingeventually into the hands of a per-son ready to be depraved by thetome. Logically, no book whicheven in the most mildly soporificmanner treated sex, could escape

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such a law. There was certain tobe at least one objectionable personwhom the law must protect":Grant and Angoff "Massachusettsand Censorship" (1930) 10 BostonUniversity Law Review 54. Thefact that Lord Cockburn's standardwas too broad did not, however,prevent its use: Steele v. Brannan(1872) L. R. 7 C. P. 261; 26 L. T.N. S. 509; People v. Muller (1884)32 Hun. 209, 2 N. Y. Cr. R. 279(affirmed 96 N. Y. 408, 2 N. Y.Cr. R. 375, 48 Am. Rep. 635);United States v. Bebout (D. C.)(1886) 28 Fed. 522; Gilmore v.State (1903) 118 Ga. 299, 45 S. E.226; Rex v. Beaver (1905) 9 Ont.L. R. 418, 9 Can. Crim. Cases 415;Commonwealth v. Buckley (1909)200 Mass. 346, 86 N. E. 910; UnitedStates v. Kennerly (1913) 209 Fed.119; Commonwealth v. Allison(1917) 227 Mass. 57, 116 N. E.265. The primary result of thisadoption of the standard was torender the subject of obscenity stillmore ill-defined and uncertain, andto keep it in a continual chaoticstate.

Nevertheless, any existing uncer-tainty has never lessened the clamorof many for a greater censorshipin all fields where obscenity mightenter. Every state has enactedstatutes against things obscene, andall of these statutes treat the sub-ject in practically the same way.For a typical illustration of thesestate statutes see: Ill. Crim Code,ch. 38, sections 468-472. Such or-ganizations as the New EnglandWatch and Ward Society and theNew York Society for the Suppres-sion of Vice tlso have been founded,to say nothing of the appointmentin many large cities of boards ofcensors for dramatic presentations,motion pictures, and publications.However, all such activity eventu-

ally leads back to the inevitablequestion, "Just what is 'obscene'and what should be kept from pub-lication?" Some courts and writ-ers have decided, notwithstandingLord Cockburn, that "obscene," "in-decent," and words of like connota-tion have no technical significance,nor that they can be defined bylaw: United States v. Harmon(1891) 45 Fed. 414 (affirmed 50Fed. 921); Timinoits v. UnitedStates (1898) 85 Fed. 204, 30 C.C. A. 74; Law Notes, July, 1924,p. 65; New York Law Review,March-April, 1927, p. 86; LawNotes, May, 1927, p. 25. Oneauthor says, "There is not and can-not be any definite and universallyaccepted standard by which may bedecided what is decent and cleanand what is indecent and ob-scene. Under our system of lawsthis issue must be determined byjudges and juries and upon the trialof an indictment for indecency alltwelve of the jurors must agree asto the quality of the act charged,or no guilt can be established":New York Law Review, March-April, 1927, p. 86.

It may be expected that decisionsof courts have sharply conflicted(as in the instant case) when in-terpreting the problem of how farthe state should go in the field ofcensorship. The state has twoideals, (1) to encourage individual-ism in all fields of rtistic enter-prise, and (2) to protect the indi-vidual against everything harmful.In the statutory interpretation ofthe word "obscene" these two idealsoften conflict. The resulting deci-sions seem to depend upon whetherjudges are "liberal" or "strict." De-cisions have been rather too numer-ous to cite other than a few of theleading ones: In re WorthingtonCo. (1894) 30 N. Y. S. 361, 24

L. R. A. 110; People v. Eastman(1907) 188 N. Y. 478, 81 N. E.459; St. Hubert Guild v. Quinn(1909) 118 N. Y. S. 582, 64 Misc.Rep. 336; Commonwealth v. Buck-ley (1909) 200 Mass. 346, 86 N. E.910; United States v. Kennerly(1913) 209 Fed. 119; People v.Brainard (1920) 183 N. Y. S. 452,192 App. Div. 816; Halsey v. TheNew York Society (1922) 234 N.Y. 1, 136 N. E. 219; AmericanMercury, Inc. v. Chase (1926) (D.C. Mass.) 13 Fed. (2d) 224; Amer-ican Mercury, Inc. v. Kiely (1927)19 Fed. (2d) 295; Commonwealthv. Friede (1930) 271 Mass. 318, 171N. E. 472; Commonwealth v. DeLacey (1930) 271 Mass. 327, 171N. E. 455; United Stales v. Den-nett (1930) (C. C. A. N. Y.) 39Fed. (2d) 564; People v. Pesky(1930) 243 N. Y. S. 193, 230 App.Div. 200 (affirmed 254 -N. Y. 373,173 N. E. 227).

In the instant case, after con-sidering- the problem, the writer isinclined to dissent. The productionof the play "Frankie and Johnnie"was a public one advertised to drawpeople from all walks of life. Itwas performed in a theater con-stantly attended by those not know-ing the nature of the performancethey were to see. If we allow theneed of the second ideal of thestate-that of protecting the indi-vidual from everything harmful-then there is no place, outside ofthe magazine trade, where the lawshould be more stringent in carry-ing out this idea. Had the per-formance been a private one, andnot attended by the general public,then the majority opinion wouldbear greater weight,

It is admitted that many mayargue, as does Judge Pound, that acourt is neither a censor of playsnor a regulator of manners. A sys-

RECENT CRIMINAL CASES

tem wherein judges were licensorsof plays would be odious to them.Courts refuse to enjoin people's at-tempted speech: Ex parte Tucker(1920) 110 Tex. 335, 220 S. W. 75.Should they not also refrain fromsuppressing the plays that peoplewish to see? The problem presentsworthy arguments on both sides.How can the individual concludewhich position is more nearly cor-rect in view of the indecision whichhas marked the past?

"The matter is one incapable ofa logical solution. The best thatcan be done is to see that the sobercommon sense of average men con-trols it, excluding both the bigotsfor revenue and the filth exploitersfor revenue": "Obscene Plays"(1927) 31 Law Notes 25.

JoN KNOX.

ENTRAPMENT--LQUOR SALE-NA-TIONAL PROHIBITION Ac.-[Fed-eral] A Federal prohibition agent,Martin, went to the defendant'shome accompanied by three men,residents of the community, who in-troduced Martin as a business manon vacation who desired to obtainwhiskey. After Martin made sev-eral fruitless requests for liquor,conversation disclosed that the de-fendant, Martin, and one of theothers were soldiers in the sameWorld War army division. Afterthe agent expressed another re-quest, the defendant left home andreturned within thirty minutes withwhiskey which he exchanged forfive dollars offered by Martin. De-fendant was convicted of selling in-toxicating liquor in violation of theNational Prohibition Act 27 U. S.

-C. A. and sentenced to eighteenmonths' imprisonment. He assignedas error that the trial judge with-drew from the jury the defense of

RECENT CRIMINAL CASES

entrapment. Held: On appeal(Soper, J. dissenting), the judg-ment was affirmed; the trial courtproperly instructed the jury thatthere was no evidence that the de-fendant was induced or entrappedto sell liquor. Sorrels v. UnitedStates (C. C. A. 4th 1932) 57 F.(2d) 973.o

Apparently the earliest instancesof using the defense of entrapmentoccurred where property was takenby the defendant with the owner'sconsent or inducement and hencenot "against the owner's will":Parker, J., in Sorrells v. UnitedStates, supra; Bishop "CriminalLaw" (9th ed. 1923) secs. 926t.-z. e. The entrapment plea was laterextended to the situation where thedefendant committed an act at thesuggestion or procurement of gov-ernment officials or their agents;recently its use has multiplied whereindictments concern offenses againstnarcotics and liquor laws. See an-notations to Butts v. United States(C. C. A. -8th 1921) 273 F. 35, 18A. L. R. 143 at 146; Robinson v.United States (C. C. A. 8th 1928)32 F. (2d) 505, 66 A.. L. R. 468at 478. This increase possibly mayillustrate the fact that "everybodyknows that more devices and sub-terfuges are resorted to in attempt-ing to violate prohibitory liquorlaws, and to evade punislimenttherefor, than in all other depart-ments of criminal law combined":DeGraff v. State (1909) 2 Okla.Cr. 519, 532, 103 Pac. 538, 550.

In decisions dealing with liquorviolations under the National Pro-hibition Act, the Federal courtsprobably agree that there should be"some evidence" of entrapment be-fore the plea can be supported:Hall v. United States (C. C. A. 4th1931) 46 F. (2d) 461. Courts aredivided whether entrapment is a

question of law for the judge or aquestion of fact for the jury: Jarlv. United State0 (C. C. A. 8th1927) 19 F. (2d) 891; cases infra.Opinions are diverse whether ornot the evidence of entrapmentgoes to nullify and purge the de-fendant's physical acts of criminal-ity and culpability or merely meas-ures and mitigates the punishmentfor the criminal act. See Wood-rough, J. in United States v. Wash-ington (D. C. Neb. 1927) 20 F.(2d) 160.

In the principal case, JudgeParker and the dissenting judge dis-agree about the effect of two al-leged precedents: Butts v. UnitedStates, supra, and Newman v.United States (C. C. A. 4th 1924)299 F. 128, (1923) 289 F. 712.Judge Parker is willing to limit thelatter case, but Judge Soper de-clares: "The opinion of the court(in the principal case) announcesa rule of law contrary to that statedin its former decision in Newmanv. United States . . . It is likelyenough that the rule of entrap-ment now generally accepted inother federal circuits is an exten-sion of the law laid down in thosecases like larceny, in which theconsent of the injured party is in-consistent with the existence of thecrime; but the development, illog-ical though it may have been, hastaken place, and we should gainnothing .if we should now retraceour steps. . . . The facts in thepending case justify an applicationof the prevailing rule." Both theButts and Newman decisions in-volve violations of narcotics stat-utes, and it is difficult to understandwhat valid effect those cases couldhave in liquor sale fact situationsunless we are willing to assumethat a "rule" or "principle" or"doctrine" can be "derived" from a

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past, decided narcotics case and thencan be "applied" to future, differentand new facts arising from a liquorsale. Judge Soper assumes this,and Judge Parker does also: "Whilethe case at bar is one involving theviolation of the liquor laws, therule which we are asked to approvewould not apply in liquor casesalone, but would furnish a haven ofrefuge to criminals generally." Itis not easy to assent to the assump-tions of either judge.

The dissenting judge maintainsthat the "doctrine" of Butts v.United States has been accepted inevery Federal circuit; the casescited originated in such varied cir-cumstances as possession, sale, andtransportation of liquor, liquor con-spiracy, liquor nuisance, liquor saleto soldier in uniform, narcotics sale,and possession, and bribery. UnitedStates Supreme Court decisions onentrapment deal with violations ofpostal regulations. There is nohigh court opinion on entrapment ina liquor sale offense under the Na-tional Prohibition Act. See Caseyv. United States (1928) 276 U. S.413, 72 L. Ed. 632, 48 S. Ct. 373(narcotics).

In lower Federal court opinionsin liquor offenses since the NationalProhibition Act, where entrapmenthas been advanced defensively, cer-tain formulae or tests receive em-phasis by the judges. The or-dinary type of jury instruction ap-pears in Weiderman v. UnitedStates (C. C. A. 8th 1926) 10 F.(2d) 745; see United States v.Washington, supra. After ex-amining the whole field of the evi-dence, sometimes courts are contentto declare the government is"estopped" from prosecuting or isprevented by "public policy"; howillusory such phrases may becomeare illustrated in subsequent cita-

tions. If the court believe that testi-mony reveals a "sale," there is noground available for pleading en-trapment: Johnstone v. UnitedStates (C. C. A. 9th 1924) 1 F.(2d) 928. When the eye of thecourt focuses upon the defendant,the judge attempts to discover thedefendant's conduct or mental statebefore and at the commission ofthe alleged crime. Cf. UnitedStates v. Certain Quantities of In-toxicating Liquors (D. C. N. H.1923) 290 F. 824. If the criminalintent to violate the law originatedin the accused's mind prior to thealleged offense, he is not likely tobe successful in his entrapmentplea: Reyff v. United States (C.C. A. 9th 1924) 2 F. (2d) 39; Rit-ter v. United States (C. C. A. 9th1923) 293 F. 187; see decisionsinfra. It appears that "origin of thecriminal intent" in whole or in partas a formula would be difficult touse in trying to allocate the timeand portion of the criminal intentsupplied by the defendant or the en-trapping government officials.

Still pointing to the accused, acourt often inquires into defend-ant's previous reputation and con-duct to note whether he is an in-nocent, law-abiding, or honest citi-zen or whether he is a bootlegger"criminal," habitual offender, or inthe business of crime or selling il-licit liquor. United States v. Wash-ington, supra. Defendants whoclaimed no prior illegal transactionsin alcohol won new trials: Silkand Meek v. United States (C. C.A. 8th 1927) 16 F. (2d) 568; Dris-kill v. United States (C. C. A. 9th1928) 24 F. (2d) 535. In indict-ments for conspiracy to violate theNational Prohibition Act, usuallycoupled with counts for illegal salesof liquor, past conduct of defend-ants will be investigated: O'Brien

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v. United *States (C. C. A. 7th1931) 51 F. (2d) 674; Polski v.United States (C. C. A. 8th 1929)33 F. (2d) 686, certiorari denied(1929) 280 U. S. 591, 74 L. Ed.640, 50 S. Ct. 39; DeMayo v. UnitedStates (C. C. A. 8th 1929) 32 F.(2d) 472; Newman v. United States(C. C. A. 9th 1928) 28 F. (2d)681, certiorari denied (1929) 279U. S. 839, 73 L. Ed. 869, 49 S. Ct.253; Corcoran v. United States (C.C. A. 8th 1927) 19 F. (2d) 901;St. Clair v. United States (C. C. A.8th 1927) 17 F. (2d) 886; Silk andMeek v. United States, supra;United States v. Wray (D. C., .N.D., Ga. 1925) 8 F. (2d) 429; Grovev. United States (C. C. A. 4th 1925)3 F. (2d) 965, certiorari denied(1925) 268 U. S. 691, 69 L. Ed.1159, 45 S. Ct. 511; Zucker v.United States (C. C.-A. 3rd 1923)288 F. 12, certiorari denied Krivitv. United States (1923) 262 U. S.750, 756, 67 L. Ed. 1214, 1218, 43S. Ct. 525, 703. Researches into de-fendant's past acts may be relevantto reach his criminal intent or tomeasure and mitigate his punish-ment, but it is doubtful whethersuch explorations aid the jury todecide the issue, namely, the al-leged act for which the accused istried.

Evidence of defendant' priorconduct will often be mentioned informulae and tests regarding thegovernment agents. Purchases ofliquor by decoys, agents, or officialswere not entrapments: Kendjerskiv. United WStates (C. C. A. 6th1926) 9 F. (2d) 909; Ransey v.United States (C. C. A. 6th 1920)268 F. 825; Saucedo v. UnitedStates (C. C. A, 5th 1920) 268F. 830. If the government offi-cials had reasonable suspicions thatthe defendant was engaging incrime, entrapment was not avail-

able as a defense: Driskill v.United States, supra; DeLong v.United States (C. C. A. 8th 1925)4 F. (2d) 244; cf. Rossi v. UnitedStates (C. C. A. 8th 1923)293 F.896. Formulae occasionally con-tain expressions of the officers' goodfaith, honest belief, or purpose inascertaining defendant's activitiesor their purpose to detect and en-trap the accused in an offense:Murphy v. United States (C. C. A.5th 1924) 2 F. (2d) 599; UnitedStates v. Reisenweber (C. C. A. 2nd1923) 288 F. 520 (liquor nuisance);Farley v. United States (C. C. A.8th 1921) 269 F. 721. These lattertests tend to confuse the issue be-fore the jury by entering discus-sion of the officers' suspicions; seeParker, J., in Sorrells v. UnitedStates, supra.

Where the entrapping officer'sconduct is in evidence, the courts'formulae and tests question whetheror not the officer misrepresentedhimself or pretended a plan,whether he offered, originated orinitiated a plan, or whether hesuggested, solicited, encouraged,persuaded, aided, abetted, pro-cured, beguiled, induced, deceived,enticed, or lured the defendantinto committing a crime. Ifthe officer merely presented theaccused with an opportunity to vio-late the statute and the accused"took the bait," the entrapment pleawill not be successful: Jordan v.United States (C. C. A. 5th 1924)2 F. (2d) 598; Porter v. UnitedStates (C. C. A. 8th 1929) 31 F.(2d) 544; Hadley v. United States(C. C. A. 8th 1927) 18 F. (2d) 507;United States v. Smith (D. C.. S.D., Tex. 1930) 43 F. (2d) 173. Thegeneral assumption appears to bethat the government agents shouldnot create crime or manufacture itfor the purpose of prosecuting.

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The principal decision seems toindicate the court's unwillingness tointerfere with results of govern-ment agent's tactics in a liquor salesituation. The court does not sanc-tion the idea that prosecuting crimeis a game in which entrapment isanother sporting defense. Althoughthe entrapment plea was unknownat common law and has not beengranted by legislatures, courts haveassumed the power to grant an ac-cused this privilege. Since it isnot within the province of a courtto censure government action, un-less constitutional guarantees are inissue, the entrapment defense shouldbe discouraged by the courts. En-trapment might well be a politicaland not a judicial controversy: seeUnited States v. Washington, supra.Condemnation or criticism of thegovernment entrapping defendantsto commit crime should come fromthe public, not from the courts.

D. V. LANSDEN.

INDICTMENT AND INFORMATION-

AMENDMENT-CHANGING THE NA-

TURE OF THE OFFENsE.-[Virginia]The defendant was indicted forbreaking and entering a dwellinghouse with the intent "to commitan assault" and "to maim, disfigure,disable, and kill." At the trial thedefendant's counsel moved that theCommonwealth elect under whatsection of the statute the accusedwould be tried. The prosecutionelected to try him under a sectiondefining as a crime the breakingand entering "with intent to com-mit murder, rape, or robbery" (Vir-ginia Code [1919], sec. 4438). Thedefendant objected to the court's in-structions based on that section onthe ground that the indictmentcharged, as all parties seemed toadmit, a crime defined in another

section as breaking and entering"with intent to commit . . . anyfelony other than murder, rape, orrobbery" and carrying lesser penal-ties (Virginia Code [1919], sec.4439). The jury found the defend-ant guilty and imposed a sentenceof five years in the penitentiary, aterm possible under either section ofthe statute. Held: that the elec-tion after motion by the defendanthad the effect of amending the in-dictment as provided by statute:Sullivan v. Commonwealth (Va.1931) 161 S. E. 297.

The amending statute upon whichthe court relied provides that anindictment may be amended by thetrial court, to cure any defect inform or variance with the proof,"provided such amendment does notchange the nature of the offensecharged . . . ": Virginia Code(1919) sec. 4878. This restrictionon the amending power is, in otherjurisdictions, usually implied fromthe prohibition, constitutional, stat-utory, or both. against changes ofsubstance. At common law therecan be no amendment, either as toform or substance, without the con-sent of the grand jury presentingthe indictment: Ex parte Bain(1887) 7 Sup. Ct. 781, 121 U. S. 1;Joyce "Indictments" (2d ed. 1924)sec. 13; 2 Bishop "Criminal Pro-cedure" (1913) sec. 708. A forti-ori is this true whenever there isa constitutional requirement; Pat-rick v. People (1890) 132 Ill. 529,24 N. E. 619. These rights maybe abrogated by statute in so faras constitutional guarantees are notinfringed upon: See 1 Bishop,supra, sec. 97: 2 Id. sec. 711. But,irrespective of statutes, any amend-ment changing the nature of theoffense is prohibited as being achange of substance, violating theconstitutional right to presentment

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by a grand jury: State v. Good-rich (1865) 46 N. H. 186; Wilburv. State (1912) 101 Miss. 392, 58So. 7; Joyce, supra, Sec. 137. Theonly difficult part of the problem is,as illustrated by the instant case, indetermining what is a change inthe nature of the offense. It is usu-ally sufficient ground to reverse acase if statute makes any distinctionbetween the original and amendedcharge; courts jealously enforce theprinciple with little regard to theactual prejudice to the defendant:State v. Jones (1888) 101 N. C.719, 8 S. E. 147 (indictment charg-ing "an attempt to burn a dwellinghouse" amended to read "an attemptto burn a store"); State v. Sowell(1910) 85 S. C. 278, 67 S. E. 316(indictment for larceny and house-breaking committed in the daytimeamended to allege that the crimewas committed in the nighttime);State v. Quinn (N. J. 1932) 158At. 834 (charge of carrying deadlyweapons changed to one of conceal-ment of weapons). It is imma-terial that the amendment charges alesser crime: Commonwealth v.Adams (1891) 92 Ky. 134, 17 S.W. 276 (the judge, thinking evi-dence insufficient to support indict-ment charging forgery, altered it tocharge obtaining money under falsepretenses) ; People v. "Motello(1913) 157 App. Div. 510, 142 N. Y.Sup. 622 (words "malice afore-thought" stricken out to change in-dictment for murder to one formanslaughter). However, wherean indictment charges a number ofcrimes the prosecution may strikeout some of them: State v. Cle-ment (1910) 80 N. J. L. 669, 77At. 1067; State v. Lamb (1911) 81N. J. L. 234, 80 Atl. 111; Common.wealth v. Smith (1914) 24 Pa. Dist.Rep. 936. But this is strictly notan amendment: it is hardly more

than the ordinary nolle prosequi andcould not possibly prejudice the de-fendant. This situation is to bedistinguished from that where partof the allegations are quashed tomake a different charge: Duty v.Stdte (1908) 54 Tex. Crim. Rep.613, 114 S. W. 817. But necessaryallegations may be added when theoriginal indictment was plainly in-tended to charge the same crime ascharged after the amendment:Chrisman v. Superior Court (1922)59 Cal. App. 305, 210 Pac. 632;People v. Sims (Mich. 1932) 241N. W. 247.

The Virginia Constitution islacking in the usual safeguards; theonly provision relevant here being"That in all criminal prosecutionsa man hath a right to demand thecause and nature of his accusa-tion . . . ": Constitution ofVirginia (1902) sec. 8, par. 2. Butthis should not affect the holding ofthe court, as the precise point iscovered by the statute. It is alsoto be noted that the requirement ofpresentment by grand jury con-tained in the Fifth Amendment ofthe Federal Constitution is applic-able; the provision is considered asjurisdictional and therefore bind-ing on state courts: Ex parteBain, supra. So it can hardly besaid that the Virginia court is tobe judged under any separatestandard.

In view of the general attitude ofstrictness 6btaining in the enforce-ment of safeguards established forthe benefit of accused persons, it isdifficglt to agree with the holdingof the court in the instant case.The court was of the opinion thatthe two sections of the statutemerely defined degrees of the samecrime. In other words, it con-sidered that the difference in in-tent indicated in the two sections

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did not change the fundamental na-ture of the offense. But, as waspointed out in the dissenting opin-ion, a difference of intent may bethe distinction between two crimes,or a crime and no crime at all;the subjective test is frequentlyused in the field of criminal law. Itis common professional knowledgethat the subjective attitude ormental phenomena of "malice afore-thought" marks the distinction be-tween murder and manslaughter;and it has been held that an in-dictment for manslaughter cannotbe amended to charge murder;People v. Granice (1875) 50 Cal.447; and cf. the converse, PeopleV. Motello, supra. It is true thatthese two crimes are designated bydifferent names, which is not truein the instant case, but it does notseem that the mere nomenclatureshould be controlling. The courtrelied on two other Virginia de-cisions holding that the word "fel-oniously" could be stricken out:Kelley v. Commonwealth (1924)140 Va. 522, 125 S. E. 437; Youngv. Contnwnwealth (1931) 155 Va.1156, 156 S. E. 565. But, as men-tioned in the dissenting opinionof the principal case, these twocases involved indictments reallycharging misdemeanors; hence, theword "feloniously" was surplusage,and its deletion did not change thenature of the offense. In England,where there is a very broad amend-ing statute practically leaving thematter to the discretion of the trialjudge (14 & 15 Victoria, chap. 100,sec. 1) it is held that the word"felonious" cannot be stricken outwhen the effect would be to changea felony to a misdemeanor; Regisv. Wright (1860) 2 Fost. & F. 320.Another case cited by the courtseems still less in point; it involvedonly the amending of a bill of par-

ticulars: Jennings v. Common-wealth (1922) 133 Va. 726, 112, S.E. 602.

The mere fact that the legislaturesaw fit to use separate sectionsshould be some indication that eachsection was intended to describe aseparate offense: cf. State v.Jones, supra; State v. Sowell, supra;State v. Quinn, supra. A distinc-tion was in fact made and separatepenalties provided. It is submittedthat, even if the two sections maybe said only to differentiate differentdegrees of the same crime, the dis-tinction comes within the meaningof the amending statute; perhapsthe latter statute should have beenworded more explicitly: cf. Statev. Keifer (1917) 183 Iowa 319, 163N. W. 698, and statute there cited.

The court reinforced its decisionby considering that, as the amend-ment was brought about by the de-fendant's motion, any irregularitywas waived. It is usually held, how-ever, that consent to an improperamendmehnt does not estop the de-fendant from making later objec-tion: People v. Campbell (N. Y.1859) 4 Parker Crim. Rep. 386;Commonwealth v. Adams, supra;Dodge v. United States (1919) 258Fed. 300. Contra: State v. Faile(1895) 43 S. C. 52, 20 S. E. 798.The court also held that the error,if any, was immaterial, as the sen-tence given was possible undereither section. But the jury wouldlikely be influenced by the possiblepenalties available.

The guaranty of presentment bya grand jury appears to be foundedon two principles: first, to mini-mize the danger of false official ac-cusation with its accompanying stig-ma and suffering; second, to givethe accused adequate opportunity toprepare his defense. The facts ofthe instant case suggest that these

RECENT CRIMINAL CASES 489

principles were satisfied. But itmust be remembered that these safe-guards are primarily for the protec-tion of the innocent, and their in-violability has always been one ofthe deep-rooted principles of Anglo-American law. On this basis thedecision in the instant case canhardly stand. But whether it is de-sirable, because of modem circum-stances, to relax the strictness ofthese principles-to give the courtsa greater discretion in their applica-tion-is a matter beyond the scopeof this comment. The case may in-dicate an official reaction againstan ancient criminal law applied topresent day needs.

L. W. Hrss.

VERDIcT-NECFSSITY FOR CONSIST-ENc.-[Federal] Defendant was in-dicted for violation of the NationalProhibition Act. The indictmentcontained three counts under 41Stat. 308, 314 (27 U. S. C. A. 12,33): (1) for maintaining a com-mon nuisance by keeping for saleat a specified place intoxicatingliquor, (2) for unlawful possessionof intoxicating liquor, and (3) forunlawful sale of such liquor. Thejury returned a verdict of guilty onthe first count but not guilty on theother two counts. The defendantappealed on the ground of incon-sistency in the verdict. Held: Af-firmed. Consistency in the verdictis not necessary: Dunn v. U. S.(1932) 52 S. Ct. 189.

There was a vigorous dissent byMr. Justice Butler who stated hisconception of the law to be that (1)"When, upon an indictment charg-ing the same offense in differentcounts, the jury acquits as to oneand convicts as to the other, de-fendant is entitled to a new trial;and (2) that when different crimes

are charged in separate counts andthe jury acquits as to one and con-victs on the other, the convictionwill be sustained, unless, excludingthe facts which the jury in reachingits verdict necessarily found notproved, it must be held a's a matterof law that there is not sufficientevidence to warrant the verdict ofguilty; and where the evidence out-side the facts so conclusively nega-tived by the acquittal on one countis not sufficient to sustain guilt onthe other count, defendant is en-titled to a new trial."

It must be admitted that there ismuch authority for Mr. Justice But-ler's view. The general rule is thatno form of verdict in criminal caseswill be good which creates a repug-nancy or absurdity in the convic-tion: 2 Bishop "New Criminal Pro-cedure (2nd Ed.)" No. 1015, a, (5).Thus, where one by different countsis accused of two crimes which byreason of their nature cannot becommitted by the same person, averdict of guilty on both counts hasbeen held so inconsistent that nojudgment can be entered thereon:Regina v. Evans (1856) 7 Cox C. C.151; Rosenthal v. U. S. (C. C. A.9, 1921) 276 F. 714; Commonwealthv. Haskins (1879) 128 ,Mtss. 60;Tobin v. People (1882) 104 Ill. 565.

Regina" v. Evans, supra, often iscited as a leading case. There, onecount accused the prisoner of steal-ing sheep. Another charged himwith having received them on thesame day. There was a generalverdict of guilty on both counts. Inannouncing a new trial for incon-sistency in the verdict, the courtsaid, "This record must, therefore,be dealt with as if there had beena special verdict on which the courtshould find matter which would notjustify either an acquittal or a con-viction."

490 RECENT CRIMINAL CASES

In Rosenthal v. U. S., supro,three were indicted under Act ofFebruary 13, 1913, 37 Stat. 670, ontwo counts: (1) having bought andreceived property stolen from a carthen being a shipment in interstatecommerce, knowing it to have beenstolen and (2) that at the same timeand place they had that property intheir possession under like circum-stances and with like knowledge.The appellant was acquitted by thejury on the first count, but wasfound guilty on the second count.The court reversed the judgmentfor the reason that the two findingswere "wholly inconsistent andconflicting."

Thus, one accused in differentcounts of the same crime, therebeing no difference in the means al-leged to have been employed, maynot be deemed guilty on a verdict ofconviction on one count but of ac-quittal on the other: Speiller v.U. S. (C. C. A. 3, 1929) 31 F.(2nd) 682, 684; State 1. Akers(1919) 278 Mo. 368, 370; State v.Hendrick (1904) 179 Mo. 300, 307.Cf. U. S. v. Malone (C. C. A. 2,1881) 9 F. 897, 900. In every suchcase the question of law for thecourt is always whether, outside thefact eliminated by the verdict ofnot guilty, the evidence was suffi-cient to warrant the conviction:Hohenadel Brewing Co. v. U. S.(C. C. A. 3, 1924) 295 F. 489;Peru v. U. S. (C. C. A. 8, 1925)4 F. (2nd) 881; Murphy V. U. S.(C. C. A. 8, 1927) 18 F. (2nd) 509;Boyle v. U. S. (C. C. A. 8, 1927)22 F. (2d) 547; and see Baldini v.U. S. (C. C. A. 6, 1923) 286 F.133.

The reason for the rule againstinconsistency is said to be groundedupon the inference that the jury hasmade a mistake. The moderntendency, however, is to give effect

to the verdict where the jury's ac-tion reflects mere inconsistency inthe consideration of the evidencewhich results in an apparently il-logical conclusion: Hesse v. U. S.(C. C. A. 9, 1928) 28 F (2d) 770;U. S. v. Anderson (C. C. A. 9,1929) 31 F(2nd) 436; PancratzLumber Co. v. U. S. (C. C. A. 9,1931) 50 F(2nd) 174; People v.Haupt (1928) 247 N. Y. 369, 160N. E. 643.

There is no more reason to saythat the jury made a mistake to theprejudice of the defendant than tosay that its mistake was in hisfavor. The tender regard for thedefendant under the old rule iscertainly an obstacle to the pro-tection of the general public againstcriminals. Instead of making apresumption that the inconsistencyin the verdict prejudiced the de-fendant, it seems more sensible forthe reviewing court to determinewhether or not the so-called erroris such as would probably cause adifferent result in a new trial. Areasonable explanation of the jury'sconduct in reaching such inconsist-ent verdicts is that, "The jury didnot speak their real conclusions,but that does not show that theywere not convinced of the defend-ant's guilt. We interpret their ac-quittal as no more than their as-sumption of a power which they hadno right to exercise, but to whichthey were disposed through leni-ency": Steckler v. U. S. (C. C. A.2, 1925) 7 F(2nd) 59, 60; cf. Car-rignan v. U. S. (C. C. A. 7, 1923)290 F. 189; Marshallo v. U. S. (C.C. A. 2, 1924) 298 F. 74; Goznerv. U. S. (C. C. A. 6, 1925) 9 F(2nd)603; and Seiden v. U. S. (C. C. A.2, 1926) 16 F(2nd) 197.The present case is interesting as

an example of the division of powerbetween the judge and the jury.

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Under the federal rule, the offenseswhich may be joined in the sameaction are not limited to the con-solidation of counts which mighthave been joined at common law,but the trial court is merely vestedwith discretion to refuse to permitjoinder if it would prevent a fairtrial or be unjust to the defendant:10 Stat. 162 (18 U. S. C. A. 557);Dolan v. U. S. (C. C. A. 8, 1904)133 F. 440; Kidwell v. U. S. (1912)38 App. D. C. 566. Each count inan indictment is regarded as if itwere a separate indictment: Lath-am v. The Queen, 5 "Best and Smith635; Selvester v. U. S. (1897) 170U. S. 262. 18 S. Ct. 580. Thusit has been held that the numberof counts in an indictment may bedetermined by the number of pur-chases of narcotics made from de-fendant by the government agents:Blockburger v. U. S. (1932) 284U. S. -, 52 S. Ct. 180, and seecomment (;March, 1932) 22 Journalof Criminal Law and Criminology902. Whether or not the maximumpenalty may be assessed on eachcount charging a separate offenseand the sentences made to run con-secutively instead of concurrentlyis in the discretion of the judge:Blockburger v. U. S. supra; Par-magini v. U. S. (C. C. A. 9, 1930)42 F(2nd) 721. (There the de-fendant amassed five consecutivesentences aggregating seventeenyears in the penitentiary plus $17,-000 in fines by reason of his viola-tion of five different statutes by asingle sale of narcotics.)

Thus, in allocating the powers ofthe different instrumentalities inthe administration of criminal law,it is seen (1) that the governmentagents can prepare evidence formany counts in an indictmentmerely by inducing several breachesof the statute by the defendant, as

by making many different purchasesof liquor or narcotics from him.(2) The prosecutor can add to thenumber of counts by drawing a sep-arate one for each of the differentlaws that the defendant has trans-gressed in the illegal transaction, orhe can limit the number of countsby grouping all of the purchasesinto the same count. (3) The court,in its discretion, may refuse joinderof counts it deems unjust to thedefendant. (4) The court maymake its sentence on each count runconcurrently or consecutively. (5)But the jury may check the judge'spower to levy consecutive sentenceson the different counts by findingthe defendant guilty on only somany of the counts as it wishes tosee punished, and it may exercisethis power in spite of the fact thatit may make the verdict seem in--consistent.

EMERSON WHITNEY.

INcEsT--EIDENCE-UNCORRBOR-ATED TESTIMONY OF AccoMPLICE.-[Texas] Defendant was convictedof the crime of incest with his six-teen year old daughter and sen-tenced to eight years in the peni-tentiary. The only evidence sup-porting the conviction was theclearly uncorroborated testimony ofdefendant's daughter, the prosecu-trix, who testified that her consentwas induced by, promises to buyher new clothes. No other force orpersuasion appeared. Held: judg-ment reversed as the prosecutrixwas, as a matter of law, an accom-plice so the conviction could not besustained in the absence of corrob-orating testimony. Tindall v. State(1931) 43 S. W. (2d) 1101.

From this reversal it is quite ap-parent that Texas is one of thejurisdictions which refuses W follow

492 RECENT CRIMINAL CASES

the common law that the uncorrob-orated testimony of an accomplice,if it satisfies the jury beyond areasonable doubt, may be sufficientto warrant a conviction. This re-sult has been reached by statute:"A conviction cannot be had uponthe testimony of an accomplice un-less corroborated by other evidencetending to connect the defendantwith the offense committed; * * *":Vernon's Annotated Code of Crim-inal Procedure of Texas (1925)Article 718. Laying aside the ques-tion of the advisability of such astatute, it would appear, at firstglance, that it could easily be ad-ministered. However, the courtshave found the same difficulties inits application which have been en-countered in numerous other stat-utes designed to change or abrogatewell settled law by a statement madein general terms but lacking in awell defined exposition of legisla-tive intent. The principal difficultythe Texas courts have encounteredwith the above statute is to deter-mine who is an accomplice. In theinstant case, the decision held thata person, regardless of her age, par-ticipating in an incestuous relation-ship, was an accomplice within themeaning of the statute, in the ab-sence of "force, threats, fraud, orundue influence" practiced by thedefendant, the other participatingparty.

The point which seemed to inter-est the court most was whether thedefendant's promise to buy theprosecutrix clothes constituted suchundue influence as to take theprosecutrix from the court's defini-tion of an accomplice. The courtdecided this mercenary persuasiondid not amount to undue influenceso that the prosecutrix was treatedas an accomplice as a matter oflaw, regardless of her age, in ac-

cordance with a long line of priorTexas decisions: Mercer v. State(1884) 17 Tex. App. 452; Brad-shaw v. State (1917) 82 Tex. Cr.R. 351, 198 S. W. 942; Cottrell v.State (1922) 91 Tex. Cr. R. 506,240 S. W. 313; Master v. Stoie(1925) 100 Tex. Cr. R. 30, 271S. W. 920.

The reasoning used by the Texascourt in this incest case is charac-teristic of other decisions on thispoint. If force, threats, fraud, orundue influence are absent, then theprosecutrix is assumed to have par-ticipated voluntarily, is an accom-plice as a matter of law, and a con-viction on her testimony alone can-not be sustained. It is submittedthat the logic of the court would beless open to question if, in deter-mining whether she was an accom-plice or not, it also had taken intoconsideration the age of the prose-cutrix in order to decide whetherher participation was voluntary.The age of consent in Texas iseighteen: Vernon's AnnotatedPenal Code of Texas (1925) Arti-cle 1183. Consequently, as theprosecutrix was under the age ofconsent, it is difficult to conceivehow she could have voluntarilyconsented to participate in an in-cestuous act, when the law pre-scribes that she cannot so consent,out of regard for her immaturity,until she reaches the age of con-sent. Even in the absence of force,fraud, threats and undue influence,the prosecutrix could not consentor participate voluntarily as thelaw had removed her power to con-sent, without regard to her bloodrelationship to the male participant.The law had removed the "volition"of the prosecutrix and yet the courtassumed that, regardless of her im-maturity, she could voluntarily con-sent to the incestuous relationship,

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would be a particeps criminis, andhence an accomplice.

The Supreme Court of Iowa, inconstruing an almost identical stat-ute (Code of Iowa, 1927, Chapter647, Sectiori 13901) has taken intoconsideration the age of the prose-cutrix, the alleged accomplice, inorder to determine whether itwould be possible in law for herto consent to the incestuous rela-tionship: State v. Goodsell (1908)138 Ia. 504, 116 N. -W. 605; Statev. Sparks (1914) 167 Ia. 746, 149N. W. 871; State v. Stalker (1915)169 Ia. 396, 151 N. W. 527; Statev. Pelser (1917) 182 Ia. I, 163N. W. 600; State v. Chambers(1893) 87 Ia. 1, 53 N. W. 1090.The Iowa Court takes into con-sideration the same distinctions asdoes the Texas Court in the caseof a prosecutrix upon whom force,threats, fraud or undue influencehave been exercised, but adds anadditional distinction in case thelaw has destroyed the prosecutrix'power to consent. Certainly if thelaw makes the consent of the prose-cutrix impossible, she can logicallyno more consent to the act than ifforce, fraud or undue influencewere practiced upon her. In eithercase, her volition is gone, and sheshould not be held an accomplicewithin the meaning of the statute.

It is submitted that the Iowa con-struction of this accomplice statutein an incest case is preferablewhere the common law rule has

been abrogated by legislation. How-ever, the great mass of decisionsconstruing such statutes, with theirhair line distinctions concerningaccomplices, illustrates the futilityof such legislation. Such a statutecreates a rule of evidence inflexiblein form, yet it must be applied innumberless criminal cases of in-finite variety. Obviously, in orderto avoid hardships, each case shouldbe considered on its facts in orderto determine whether a witness isan accomplice; no general rule ispossible. In order to considei theindividual case, jurisdictions hav-ing such a statute have evolved asubterfuge of distinctions and in-terpretations. Such distinctions andinterpretations, a few of which areillustrated in the instant case, de-part from the purpose of the statutewhich is designed to be a mere ruleof evidence, and yet such subter-fuges are inevitable if justice is tobe reached in the individual case.It is unfortunate that jurisdictionshaving such a statute thrust uponthem by their legislature are forcedto so manipulate their decisions.Certainly the common law rule ofaccomplice testimony obviates thenecessity of having to consider whoare accomplices and whether theirtestimony has been corroborated ornot. The simplicity of its: opera-tion in the individual case, as com-pared with the usual accomplicestatute, does much to commend itscontinued existence.

HENRY R. BARBER.