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pose of entrapping thieves, directed his servant to open the house to them, no burglary was committed.91 And the rule is the same where intending thieves are admitted by detectives acting in apparent collusion with them by the direction of their employers.92 And where one consents to a plan that a confederate shall procure a third person to rob him in order to secure a reward, and the plan is carried out, this is no robbery.9 93

But there must be an actual consent. Merely neglecting to take precautions to prevent an antici pated crime,94 or even leaving property exposed with the expectation of catching the thief, do not amount to consent nor rob the act of its criminal character.

There are some crimes, such as rape on girls under the age of consent, dangerous assaults, and blows given in prize-fighting, where consent is no defense. The concurring guilt of the injured person, is no defense to a criminal accusation.95

It is of the essence of an act which the law punishes as a crime that it is in itself an injury to the State, in its nature and consequences, and the demoralization of society caused by its example. It is punished by the State because it is an injury to society at large, and not because it is injurious to an individual. For this reason the character or the con

" Connor vs. People, 18 Col., 373; Allen vs. State, 40 Ala., 334.

2 Speiden vs. State, 3 Tex. App., 163; People vs. McCord, 76 Mich., 200.

93 McDaniels' case, Fost. Crown Law, 121

"People vs. Hanselman, 76 Cal., 400, State vs. Sneff, 22 Neb.. 481.

"This proposition has been tersely and clearly expressed in these words: "In no case should crime be effectually interposed as a shield for crime." Champlin J., in People vs. Watson, 75 Mich., 582.

duct of the person who is the subject of the crime is of no consequence in the criminal law.

The equitable doctrine that he who comes into a court of equity must come with clean hands has no application in the criminal law.

Therefore, as will be seen from the discussion of the different crimes, it is as much larceny to steal stolen property from the thief as to steal property from its lawful owner;96 as much rape to ravish a prostitute as the most virtuous of her sex;97 as much an assault and battery for a prize-fighter to strike another in the course of a prize fight as to strike an innocent bystander;98 as much embezzlement for a servant to steal money which the employer has obtained illegally as to fraudulently appropriate the fruits of a legitimate business;99 as much a criminal uttering of counterfeit money to give it to a prostitute in compensation for unlawful sexual intercourse as to pay it out for groceries;100 as much a criminal cheat to defraud one who is attempting to perpetrate a fraud in the same transaction as though he were acting honestly.101

There are cases in which the principle under discussion has been departed from, notably in People vs. McCord, 46 N. Y., 470. In that case, which was a prosecution for obtaining money under pretenses, the false pretenses were that the accused was an officer and had

false

"Hayne's Case, 12 Coke, 113; Ward vs. People, 3 Hill, 395. "Pleasant vs. State, 15 Ark., 624; Might vs. State, 4 Hump., 194.

28 Com. vs. Coltberg, 119 Mass., 350.

"Com. vs. Smith, 129 Mass., 104; Rex vs. Beacall, 1 C. & P., 454; Woodward vs. State, 103 Ind., 127; 5 Am. Cr., 210. 100 Reg. vs. Anon, 1 Cox C. C., 250.

101 Reg. vs. Hudson, 8 Cox C. C., 305.

a warrant for the arrest of the victim, and the inducement to part with his property was that he should not be arrested if he would pay for it. Upon these representations the prisoner obtained a gold watch and a diamond ring. The majority of the

court held that he could not be convicted of obtaining property by false pretenses, the court saying: “The prosecutor parted with his property as an inducement to a supposed officer to violate the law and his duties; and if in attempting to do this he has been defrauded, the law will not punish his confederate, although such confederate may have been instrumental in inducing the commission of the offence. Neither the law nor public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness as between each other in their dishonest practices. The design of the law is to protect those who, for some honest purpose, are induced, upon false and fraudulent representations, to give credit or part with their property to another, and not to protect those who, for unworthy or illegal purposes, part with their goods."

There was in that case an able dissenting opinion by Peckham, J. This decision cannot be considered good law because it is based upon the fundamentally erroneous idea that the offense of a criminal is an offense against an individual instead of an offense against society. The clear weight of authority is against it, and in a late case a court, which had the question involved before it for the first time, after reviewing the authorities, adheres to the proposition which we have announced.102

103 Re Cummins, 16 Col., 451. In the evolution of the law, when courts have disagreed upon a particular question, the latest decision by a court not hampered by a previous decision of its own, is most likely to strike the true key.

JURISDICTION.

CHAPTER II.

JURISDICTION OF CRIMES.

In the criminal law, jurisdiction means a lawful authority in a court to punish an act as a crime.

Whether or not a court, sitting anywhere in the United States, has jurisdiction to inflict criminal punishment in a given case, involves inquiry into a good many different questions. Many of these questions could only arise in the United States, partly, because there are two distinct governments within the territorial limits of every State in the Union, and partly, because these governments have written constitutions to which legislative enactments must conform, or they will be declared invalid by the courts. Our criminal law is largely founded upon the common law of England, where there is but one sovereignty and no written constitution to which an act of parliament must conform.

Blackstone says: "Parliament hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal, this being the place where that absolute power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms."

991

No such power is found within the limits of our territories. The powers of our governments are distributed between the executive, the legislative and

'Bl. Com.. 160.

the judicial branches, each of which is supreme within the limits of its own sphere. Constitutions are, with us, adopted directly by the people, and are for the most part, expressive of fundamental principles by which the people require that all branches of the government shall be controlled. The absolute power, which Blackstone says, "must in all governments reside somewhere," in the United States resides with the people. It is the function of the judiciary, when required to do so, to test the validity of legislative enactments by the standards of the constitution, or constitutions, with which they must conform, and no legislative power can override or control the exercise of this judicial function.

The jurisdiction to hear, try and determine the question of guilt, and to impose the appropriate penalty, depends upon these things:

1. Was there, at the time the act inquired into was committed, a valid law denouncing the act and prescribing a punishment therefor, and is the law in force at the time judgment is pronounced?

2. Was the alleged criminal act committed in a territory in which the law punishing it was in force?

3. Is the court before whom the alleged offender is brought to trial, the tribunal appointed by the law to try the offender and impose the penalty fixed by the law?

4. Is the respondent, when arraigned, lawfully subject to the power of the court?

If all of these questions can be answered in the affirmative, a lawful jurisdiction exists. If any one of them must be answered in the negative, jurisdiction does not exist, and there can be no trial and no punishment.

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