tled that in order to support a plea of autrefois acquit the offences charged in the two indictments must be identical. The test of this identity is to ascertain whether the defendant might have been convicted on the first indictment by proof of the facts alleged in the second. The question is not whether the same facts are offered in proof to sustain the second indictment as were given in evidence on the trial of the first; but whether the facts are so combined and charged in the two indictments as to constitute the same offence. It is not sufficient to say, in support of a plea of autrefois acquit, that the transaction or facts on which the two indictments are based are the same. It is necessary to go further, and to ascertain and determine whether they are so alleged in the two indictments as to constitute not only the same offence in degree or kind, but also that proof of the same facts offered to sustain the second indictment would have well supported the first. The King v. Vandercomb, 2 Leach (4th ed.), 708; Commonwealth v. Roby, 12 Pick. 496, 500; Commonwealth v. Wade, 17 Pick. 400. The last case affords an apt illustration of the practical application of the rule. The defendant was indicted for burning a dwelling-house by setting fire to the barn of A. and B. The evidence showed that it was the barn of A. and C. This variance in the description of the offence was held to be fatal, and the defendant was acquitted. He was subsequently indicted for burning the same house by setting fire to the barn of A. and C. On a plea of autrefois acquit it was held that the previous acquittal on the first indictment was no bar. The facts offered in support of the two indictments were the same, but different offences were charged in them. The averment of property in the barn was material, and this fact being alleged differently in the two indictments, they were not for the same offence either in form or substance. So in the case at bar. The defendant was first indicted for embezzling cloth, velvet, flannel, and other materials of which overcoats were made. This indictment would not have been supported if it appeared that, at the time when the alleged embezzlement was committed by the defendant, these articles no longer existed separately, but had been used and converted into garments properly called and known as overcoats. There would have been in such case a material variance in the description of the articles embezzled; the evidence would not have corresponded with the allegation in the indictment of embezzling cloth and other materials, and the defendant would have been rightly acquitted on that ground. It is common learning that in indictments for larceny, embezzlement, and kindred offences, the description of the property which forms the subject of the offence must be proved as laid. A person indicted for stealing shoes cannot be convicted by proof that he had stolen boots; nor is an indictment for stealing a sheep, which by legal implication avers that the animal was alive when stolen, supported by evidence that it was in fact dead when feloniously taken. If an article has obtained in common parlance a particular name, it is erroneous to describe it by the name of the material of which it is composed. Archb. Crim. Pl. (5th Am. ed.)

48; Roscoe's Crim. Ev. (5th ed.) 203; Rex v. Edwards, Russ. & Ry. 497; Rex v. Halloway, 1 C. & P. 128; Regina v. Mansfield, Car. & M. 140.

In the second indictment the defendant is charged with embezzling overcoats. This is a different offence from that charged in the first indictment. Nor would the evidence which would be sufficient to support it have warranted a conviction on the charge of embezzling the materials of which the coats were made. He has therefore been acquitted of a different offence from that now charged against him Such acquittal is no bar to the present indictment.

Exceptions overruled.

THE following definitions of the principal crimes are taken chiefly from Blackstone's Commentaries, and from the codes and statutes of California, Indiana, New York, and Ohio. It is believed that, so far as the common-law definitions of these crimes have been changed in any jurisdiction by statute, the changes will not materially vary from those here given.

Treason.

Const. U. S., art. 3, sec. 3. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

For treason in England, see 4 Bl. Com. 74.

N. Y. Penal Code, secs. 37-40. sists in

Treason against the people of the state con

1. Levying war against the people of the state, within this state; or

2. A combination of two or more persons by force to usurp the government of the state, or to overturn the same, shown by a forcible attempt, made within the state, to accomplish that purpose; or

3. Adhering to the enemies of the state, while separately engaged in war with a foreign enemy, in a case prescribed in the constitution of the United States, or giving to such enemies aid and comfort within the state or elsewhere.

Treason is punishable by death.

To constitute levying war against the people of this state, an actual act of war must be committed. To conspire to levy war is not enough.

Where persons rise in insurrection with intent to prevent in general, by force and intimidation, the execution of a statute of this state, or to force its repeal, they are guilty of levying war. But an endeavor, although by numbers and force of arms, to resist the execution of a law in a single instance, and for a private purpose, is not levying war.

Cal. Pen. Code, secs. 37-38. Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to this state. The punishment of treason shall be death.

Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or partaking in the crime. It is punishable by imprisonment in the state prison for a term not exceeding five years.

(This is the common form of definition. Ohio inserts the word "knowingly.”)

Escape, Rescue, etc.

4 Bl. Com. 129-131. An escape of a person arrested upon criminal process by eluding the vigilance of his keepers before he is put in hold is also an offence against public justice, and the party himself is punishable by fine or imprisonment; but the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner.

Breach of prison by the offender himself, when committed for any cause, was felony at the common law; or even conspiring to break it: but this severity is mitigated by 1007

the statute 1 Edw. II., which enacts that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment.

Barretry.

4 Bl. Com. 134. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherways.

N. Y. Pen. Code, sec. 132. Common barratry is the practice of exciting groundless judicial proceedings.

Maintenance.

4 Bl. Com. 134. Maintenance is . . . an officious intermeddling in a suit that no way belongs to one by maintaining or assisting either party with money or otherwise to prosecute or defend it. . . . A man may, however, maintain the suit of his near kinsman, servant, or poor neighbour, out of charity and compassion, with impunity. Cal. Pen. Code, sec. 161. Every attorney who, either directly or indirectly, buys or is interested in buying any evidence of debt or thing in action, with intent to bring suit thereon, is guilty of a misdemeanor.

Champerty.

4 Bl. Com. 135. Champerty, campi-partitio, is . . . a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued for between them if they prevail at law; whereupon the champerter is to carry on the party's suit at his own expense.

(These crimes are obsolete in most states.)

Embracery.

4 Bl. Com. 140. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.

Extortion.

4 Bl. Com. 141. Extortion is an abuse of public justice, which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due.

Perjury.

4 Bl. Com. 137. Perjury is . . . committed when a lawful oath is administered in some judicial proceeding to a person who swears wilfully, absolutely and falsely in a matter material to the issue or point in question.

Subornation of perjury is the offence of procuring another to take such a false oath as constitutes perjury in the principal.

Cal. Pen. Code, 118. Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury.

Ind. Rev. Stat., sec. 2006. Whoever, having taken a lawful oath or affirmation in any matter in which, by law, an oath or affirmation may be required, shall, upon such oath or affirmation, swear or affirm willfully, corruptly, and falsely touching a matter material to the point in question, shall be deemed guilty of perjury. . . .

Oh. Rev. Stat., sec. 6897. Whoever, either verbally or in writing, on oath lawfully

administered, willfully and corruptly states a falsehood, as to any material matter, in a proceeding before any court, tribunal or officer created by law, or in any matter in relation to which an oath is authorized by law, is guilty of perjury, and shall be imprisoned in the penitentiary not more than ten nor less than three years.

N. Y. Pen. Code, secs. 96-99, 101. A person who swears or affirms that he will truly testify, declare, depose, or certify, or that any testimony, declaration, deposition, certificate, affidavit, or other writing by him subscribed, is true, in an action, or a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, and who in such action or proceeding, or on such hearing, inquiry or other occasion, willfully and knowingly testifies, declares, deposes or certifies falsely, in any material matter, or states in his testimony, declaration, deposition, affidavit, or certificate, any material matter to be true which he knows to be false, is guilty of perjury.

It is no defense in a prosecution for perjury that an oath was administered or taken in an irregular manner.

It is no defense to a prosecution for perjury that the defendant was not competent to give the testimony, deposition, or certificate of which falsehood is alleged. It is sufficient that he actually was permitted to give such testimony or make such deposi tion or certificate.

It is no defense to a prosecution for perjury that the defendant did not know the materiality of the false statement made by him; or that it did not in fact affect the proceeding in and for which it was made. It is sufficient that it was material, and might have affected such proceeding.

An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false.

Affray.

4 Bl. Com. 145. Affrays (from affraier, to terrify) are the fighting of two or more persons in some public place, to the terror of his majesty's subjects: for, if the fighting be in private, it is no affray but an assault. Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequence may ensue. But more especially the constable, or other similar officer, however denominated, is bound to keep the peace; and to that purpose may break open doors to suppress an affray, or apprehend the affrayers; and may either carry them before a justice, or imprison them by his own authority for a convenient space till the heat is over; and may then perhaps also make them find sureties for the peace.

Riot, etc.

4 Bl. Com. 146. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it. A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or of way; and make some advances towards it. A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel: as if they beat a man; or hunt and kill game in another's park, chase, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.

Forcible Entry.

4 Bl. Com. 148. Forcible entry or detainer is committed by violently taking or keeping possession of lands and tenements with menaces, force and arms, and without the authority of law. (So Ind.)