prisoners were driving along the road at too rapid a pace, considering the time and place, and were conducting themselves in a careless and negligent way in the management of the horse intrusted to their care, I am of opinion that such conduct amounts to illegality, and that the prisoners must be found guilty on this indictment, whatever may have been the negligence of the deceased himself.

Verdict, guilty.1

IV. GUILT OF THE PERSON INJURED.

PEOPLE v. MARTIN.

(Supreme Court of California, 1894. 102 Cal. 558, 36 Pac. 952.) GAROUTTE, J. The appellant was convicted of obtaining money and other personal property from one Sarah E. Leonard by false and fraudulent pretenses. The information is laid under section 532 of the Penal Code, and the false pretenses upon which it is based consisted in the representations to said Leonard by the defendant that a judgment in a large sum of money had been obtained against her in the state of New York, and that her property would be seized and sold to satisfy such judgment. The information further states that said Leonard believed such statements, and, so believing, and in order to avoid the application of her property to the satisfaction of such judgment, she was induced to, and did, transfer and deliver said property to defendant.

The information contained various allegations other than those just noticed, and a demurrer was offered thereto upon various. grounds; but we think the information well drawn, and our consideration of the alleged defects therein will be limited to the contention of appellant that the allegations we have in substance quoted therefrom constitute a bar to the prosecution of the accused. Possibly the state might be barred from conducting a criminal prosecution by reasons.

1 Accord: Rex v. Hutchinson, 9 Cox, C. C. 555 (1864); Reg. v. Kew, 12 Cox, C. C. 355 (1872). See, also, Commonwealth v. Corporation, 134 Mass. 211 (1883). Contra: Reg. v. Birchall, 4 F. & F. 1087 (1866).

"In Reg. v. Desvignes, tried before Denman, J., at the last session of the Central Criminal Court, the defendant was charged with the manslaughter of Sarah Ballard, on the night of the 24th of July last, by so negligently managing a steam launch that a skiff containing the deceased and other persons was run down and capsized, and her death caused by drowning. In opening the case, the counsel for the prosecution laid it down broadly that, although contributory negligence would be an element in favor of the defendant in a civil case, it was no answer to a charge of manslaughter. Mr. Justice Denman said: "There is one decision to the contrary (Reg. v. Birchall, 4 F. & F. 1087); but I grant that current authority is in the direction you mention. The point, however, has never been settled in the Court of Appeal.'" 70 L. T. (O. S.) 76 (1880).

2 Arguments of counsel and part of the opinion relating to another point are omitted.

of the acts of its duly constituted officers representing the state in such matters; but it is a novel proposition that the acts and conduct of a private individual, even though such individual be what is termed in law the prosecuting witness, could, under any imaginable circumstances, bar the state from the prosecution of a criminal. Appellant states her position as follows:

"If, at the time that Sarah E. Leonard placed her property in the possession of the defendant, she believed that there was a valid and existing judgment for $17,000 or $18,000 against her in the state of New York, and she placed her property out of her hands to avoid its being applied towards the satisfaction of such judgment, her intentions were dishonest, and she was herself guilty of a criminal offense, and became particeps criminis."

The case of McCord v. People, 46 N. Y. 472, appears to support the doctrine insisted upon by appellant, but the great weight of authority is to the contrary. It is said by the court in Commonwealth v. Morrill, 8 Cush. (Mass.) 571: "Supposing that to be otherwise, and it should appear that Lynch (the party defrauded) had also violated the statute, that would not justify the defendants. If the other party has also subjected himself to a prosecution for a like offense, he also may be punished. This would be much better than that both should escape punishment because each deserved it equally." The doctrine of the foregoing case is approved by Mr. Bishop in his work on Criminal Law (section 469, 8th Ed.). The principle is also declared in the same work at sections 256 and 257. See, also, In re Cummins, 16 Colo. 451, 27 Pac. 887, 13 L. R. A. 752, 25 Am. St. Rep. 291. From any aspect of the case the contention has no sound support. If the party defrauded is also guilty of a violation of the law, he, too, should be prosecuted, rather than his offense should serve as a shield to the other's crime. The offense is committed against the public, and not against the individual. The guilty party is prosecuted in the interest of the people of the state, and not in the interest of the party defrauded of his property. There is no principle of law that will bar the state from prosecuting a criminal because some other person is a particeps criminis. But, viewing the facts of this case in the light of the indictment, the defrauded party committed no offense whatever. How could she possibly do so, when the pretenses were all false, and the whole thing was but a scheme of lying and deceit? If such be a crime, she transferred no property to evade its application upon a money judgment which stood against her, for there was no such judgment. Her intention to make a transfer for that purpose avails nothing, for a person's intentions alone violate no law.

We have examined the additional assignments of error based upon the rulings of the court as to the admission and rejection of evidence, and hold none of them to be well taken.

For the foregoing reasons, it is ordered that the judgment and order be affirmed.

HARRISON, MCFARLAND, DE HAVEN, and VAN FLEET, JJ., concurred.

Rehearing denied.

V. CONDONATION OF THE PERSON INJURED.

ROBERT'S CASE.

(Select Pleas of the Crown, Sel. Soc. Pl. 77. Cornish Eyre, 1201.)

Malcot Crawe appeals Robert, Godfrey's son, of rape. He comes and defends. It is testified that he thus raped her and that she was seen bleeding. By leave of the justices they made concord on the terms of his espousing her.

WILLIAMS v. STATE.

(Supreme Court of Georgia, 1898. 105 Ga. 606, 31 S. E. 546.) LUMPKIN, P. J. An indictment against G. W. M. Williams, found by the grand jury of Screven county and transferred for trial to the county court thereof, charged that the accused "did falsely and fraudulently represent to J. C. White that he, the said Williams, had purchased the Cuyler & Woodburn Railroad for the sum of $27,000, and that he had raised all of the purchase price except $100, and was then on his way to Savannah to pay the purchase money. By these false and fraudulent representations the said G. W. M. Williams fraudulently induced the said J. C. White to lend him, the said G. W. M. Williams, the sum of $100, which he promised to pay back within three days from the date of the loan. These representations, made as aforesaid, were all false and fraudulent, and were made by the said Williams for the purpose of defrauding the said White, and did in point of fact defraud the said White, contrary to the laws of the said state, the good order, peace, and dignity thereof." At the trial the state introduced testimony substantiating all the material allegations of the indictment. It distinctly appeared that, in the conversation between the accused and White which resulted in the former's procuring the loan, he claimed to be the owner of the railroad in question. For instance, he used the expression, "I don't want to incumber my road," and other language indicating a purpose on his

2 Accord: Cunningham v. State, 61 N. J. Law, 67, 38 Atl. 847 (1897). See, also, Commonwealth v. Henry, 22 Pa. 253 (1853); Reg. v. Hudson, 8 Cox, C. C. 305 (1860); Commonwealth v. Shober, 3 Pa. Sup. Ct. 554 (1897); Gilmore v. People, 87 Ill. App. 128 (1899). Contra: State v. Crowley, 41 Wis. 271, 22 Am. Rep. 719 (1876).

part to create the impression that the railroad was his property. It was further shown by the state that White was actually defrauded of $100, and that Williams did not repay the loan as he had agreed to do. Evidence in behalf of the accused tended to show the following: After Williams had been arrested upon a warrant charging him with being a cheat and swindler, and before he was indicted, he made a settlement with White by delivering to him the promissory note of E. E. Wood & Co. for $100, which White accepted in full satisfaction of his demand against Williams, and afterwards sold for $90. There was a verdict of guilty in the county court, and by his petition for certiorari Williams alleged error as follows:

Second. The judge erroneously charged that "a settlement of the debt by White after the warrant had been sworn out, and the defendant was under arrest or under bond, would be no bar to the prosecution."

We are also of the opinion that the second charge excepted to was free from error. That a fraud was perpetrated upon White plainly appeared. As a result of this fraud he was deprived of the possession and use of his money, and it is apparent from the evidence as a whole that there was a criminal intent on the part of Williams not to return the money at all. That he was subsequently forced to make restitution, which, as will have been seen, was only partial, did not relieve him of the consequences of his violation of the criminal statute, which was complete before his arrest. As well might it be said that one guilty of a larceny could escape prosecution by returning the stolen goods after being arrested for the offense.

Judgment affirmed. All the Justices concurring.'

COMMONWEALTH v. CARR.

(Superior Court of Pennsylvania, 1905. 28 Pa. Super. Ct. 122.) Indictment for defrauding by false pretenses. The opinion of the Superior Court states the case. Verdict of guilty, upon which judg ment of sentence was passed.

SMITH, J. The crime of defrauding by false pretenses belongs to the class of misdemeanors which, by section 9 of the act of penal procedure of March 31, 1860 (P. L. 432), may be settled between the complainant and the offender, at the discretion of the examining mag

1 Only so much of the opinion as relates to condonation is printed.

2 Accord: Rape, Commonwealth v. Slattery, 147 Mass. 423, 18 N. E. 399 (1888); forgery, State v. Tull, 119 Mo. 421, 24 S. W. 1010 (1894); seduction, Barker v. Commonwealth, 90 Va. 820, 20 S. E. 776 (1894); false pretense, Commonwealth v. Brown, 167 Mass. 144, 45 N. E. 1 (1896); embezzlement, Dean v. State, 147 Ind. 215, 46 N. E. 528 (1897). See, also, State v. Frisch, 45 La. Ann. 1283, 14 South. 132 (1893); May v. State, 115 Ala. 14, 22 South 611 (1896); Wooldridge v. State, 49 Fla. 137, 38 South. 3 (1905).

istrate or the court. Rothermal v. Hughes, 134 Pa. 510, 19 Atl. 677; Geier v. Shade, 109 Pa. 180. It is essential to such settlement, however, that the complainant shall "acknowledge to have received satisfaction for such injury and damage." Until this is done, there is no settlement; and neither partial restitution by the 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.

The ruling assigned for error in this case is the refusal to admit in evidence seven checks given by the defendant to the prosecutor, for amounts aggregating $3,100, and duly honored, in partial payment of a note for $9,000 given by the defendant for repayment of the amount obtained by him from the prosecutor, as charged in the indictment, with the prosecutor's receipt for a check subsequently given for the residue, but which remained unpaid.

The papers thus offered in evidence formed no part of the transaction from which the prosecution arose, and there was nothing in that transaction which they could explain. Since both the prosecutor and the defendant had already testified to the payment made by these checks, there was no question respecting them requiring further evidence. At best, the checks were only cumulative evidence of matters of fact not in dispute, and, as the case is presented in the bill of exceptions, neither their admission nor rejection could affect the defense. Moreover, in view of the evidence for the commonwealth, the partial restitution by the defendant, shown by these checks, was immaterial. Under the act referred to, the defendant can be relieved from prosecution only by the complainant's acknowledgment of satisfaction, with the approval of the magistrate or the court. As to the note and check given by the defendant, in the absence of a stipulation that they should be taken as payment, they were not satisfaction unless paid; and nearly two-thirds of the amount for which they were given remained unpaid at the commencement of the prosecution. Thus the complainant had neither acknowledged nor received satisfaction, and his efforts to obtain it were no bar to the conviction of the defendant on the indictment.

Judgment affirmed.

By statute in some states certain offenses may be compromised, in some cases with, and in others without, the consent of the court, or committing magistrate. See Statham v. State, 41 Ga. 507 (1871); McDaniel v. State, 27 Ga. 197 (1859); Saxon v. Conger, 6 Or. 388 (1877); Rohrheimer v. Winters, 126 Pa. 253, 17 Atl. 606 (1889). The New York Code of Criminal Procedure provides (section 663): "When a defendant is brought before a magis-_ trate, or is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the crime has a remedy by civil action, the crime may be compromised, as provided in the next section, except when it was committed: (1) By or upon an officer of justice while in the execution of the duties of his office; (2) riotously; or (3) with an intent to commit a felony."