"As to the latter point, if the question be put in the form most favorable to the argument for the defendant here, it stands thus: of the alternative moral and social evils, which is the greater · to deprive property unlawfully acquired of all protection as such, and thus to discourage unlawful acquisition but encourage larceny; or to punish, and so discourage larceny, though at the possible risk of thus omitting so far forth to discourage unlawful acquisition? The balance of public policy, if we thus attempt to estimate the relative weight of alternative evils, requires, it seems to us, that the larceny should be punished. Each violation of law is to be dealt with by itself. The felonious taking has its appropriate and specific punishment; so also has the unlawful acquisition." (Commonwealth v. Rourke, 10 Cush. 397.)

Such is the law both of larceny and embezzlement in the United States. (State v. Cloutman, 61 N. H. 143; Commonwealth v. Smith, 129 Mass. 104; Commonwealth v. Cooper, 130 id. 285; Woodward v. The State, 103 Ind. 127, 2 N. E. 321; Stave v. O'Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; The State v. Shadd, 80 Mo. 358; Miller & Smith v. The Commonwealth, 78 Ky. 15, 39 Am. Rep. 194; The State of Iowa v. May, 20 Iowa, 305; Bales v. The State, 3 W. Va. 685; State v. Littschke, 27 Ore. 189, 40 Pac. 167; Hertzler v. Geigley, 196 Pa. St. 419, 46 Atl. 366, 79 Am. St. Rep. 724.)

Crime does indeed beget crime, but such progeny cannot justify itself before the law by its hideous and hateful parentage.

The judgment of the district court is therefore affirmed. All the Justices concurring.

SECTION V.

Negligence of the Injured Party.

REGINA v. HOLLAND.

LIVERPOOL ASSIZES. 1841..

[Reported 2 Moody & Robinson, 351.]

INDICTMENT for murder. The prisoner was charged with inflicting divers mortal blows and wounds upon one Thomas Garland, and (among others) a cut upon one of his fingers.

It appeared by the evidence that the deceased had been waylaid and assaulted by the prisoner, and that, among other wounds, he was severely cut across one of his fingers by an iron instrument. On being brought to the infirmary, the surgeon urged him to submit to the amputation of the finger, telling him, unless it were amputated, he considered that his life would be in great hazard. The deceased refused to allow the finger to be amputated. It was thereupon dressed by the surgeon, and the deceased attended at the infirmary from day to day to have his wounds dressed; at the end of a fortnight, however, lock-jaw came on, induced by the wound on the finger; the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The surgeon deposed that if the finger had been amputated in the first instance, he thought it most probable that the life of the deceased would have been preserved.

For the prisoner, it was contended that the cause of death was not the wound inflicted by the prisoner, but the obstinate refusal of the deceased to submit to proper surgical treatment, by which the fatal result would, according to the evidence, have been prevented.

MAULE, J., however, was clearly of opinion that this was no defence, and told the jury that if the prisoner wilfully, and without any justifiable cause, inflicted the wound on the party, which wound was ultimately the cause of death, the prisoner was guilty of murder; that for this purpose it made no difference whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of the deceased not having adopted the best mode of treatment; the real question is whether in the end the wound inflicted by the Guilty.1 prisoner was the cause of death.

1 Acc. Com. v. Hackett, 2 All. 136.-ED.

THE prisoners were indicted for manslaughter. It appeared that on the 2d of June the prisoner, Jackson, who was in the employ of Mr. Harris, a farmer, was instructed to take his master's horse and cart and drive the prisoner Kew to the Bungay railway station. Being late for the train, Jackson was driving at a furious rate, at full gallop, and ran over a child going to school and killed it. It was about two o'clock in the afternoon, and there were four or five little children from five to seven years of age going to school unattended by any adult.

Metcalfe and Simms Reeve, for the prisoners, contended that there was contributory negligence on behalf of the child running on the road, and that Kew was not liable for the acts of another man's servant, he having no control over the horse and not having selected either the horse or the driver.

BYLES, J., after reading the evidence, said: Here the mother lets her child go out in the care of another child only seven years of age, and the prisoner Kew is in the vehicle of another man, driven by another man's servant, so not only was Jackson not his servant but he did not even select him. It has been contended if there was contributory negligence on the children's part, then the defendants are not liable. No doubt contributory negligence would be an answer to a civil action. But who is the plaintiff here? The Queen, as representing the nation; and if they were all negligent together I think their negligence would be no defence, even if they had been adults. If they were of opinion. that the prisoners were driving at a dangerous pace in a culpably negligent manner, then they are guilty. It was true that Kew was not actually driving, but still a word from him might have prevented the accident. If necessary he would reserve the question of contributory negligence as a defence for the Court of Criminal Appeal. The jury acquitted both prisoners.1

1 Acc. Reg. v. Longbottom, 3 Cox C. C. 439; Belk v. People, 125 Ill. 584; Crum v. State, 64 Miss. 1, 1 So. 1. But see Reg. v. Birchall, 4 F. & F. 1087. — ED.

SECTION VI.

Condonation.

4 Bl. Com. 133. Theft bote is where the party robbed not only knows the felon, but also takes his goods again, or other amends upon agreement not to prosecute. This is frequently called compounding of felony; and formerly was held to make a man an accessory; but it is now punished only with fine and imprisonment. This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law "latroni eum similem habuit, qui fertum celare vellet, et occulte sine judice compositionem ejus admittere." By statute 25 Geo. II. c. 36, even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of £50 each.1 1 Hawk. P. C. ch. 7, sect. 7. But the bare taking of one's own goods again which have been stolen is no offence at all unless some favor be shown to the thief.

COMMONWEALTH v. SLATTERY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1888.

66

[Reported 147 Mass. 423.]

2

INDICTMENT for rape on Bridget Donovan. At the trial in the Superior Court, before Dunbar, J., the defendant asked the judge to instruct the jury that, if said Donovan at any time after the act excused or forgave the defendant, then she ratified the act, and he cannot be convicted in the case." The judge refused so to instruct, but instructed the jury that evidence of her acts and conversation with the defendant, both before and after the commission of the alleged offence, was a proper subject for their consideration in determining the guilt or innocence of the defendant at the time of its commission. The defendant alleged exceptions.

W. ALLEN, J. The court rightly refused to give the instructions requested. The injured party could not condone the crime by excusing or forgiving the criminal.

1 See Reg. v. Burgess, 15 Cox C. C. 779.

2 Only so much of the case as involves the question of condonation is printed.

FLEENER v. STATE.

SUPREME COURT OF ARKANSAS. 1893.

[Reported 58 Ark. 98.]

BUNN, C. J.1 The defendant, A. W. Fleener, was indicted at the October term, 1892, of the St. Francis circuit court, for the crime of embezzlement; at the March term, 1893, found guilty and sentenced to imprisonment in the penitentiary for the period of one year. Motions in arrest of judgment and also for a new trial were overruled, and appeal taken to this court.

The fourth ground of the motion for a new trial is a novel one. The defendant contends that, having hired the guarantee company to make his bond for faithful performance of duty to the Pacific Express Company, and that company having paid the express company for all losses claimed by it to have been suffered by reason of defendant's alleged embezzlement, therefore there was no crime committed; that the express company had no longer any interest at stake, and even that the State has no interest in the matter. In this the defendant is mistaken. This is no longer a controversy between himself and the two companies, or either of them, and has not been since he fraudulently appropriated the money of the express company, if indeed he did so appropriate it. It is now a controversy between the State of Arkansas and himself, which the State will not permit either one of the said companies to determine at present or in the future, nor will the State acknowledge the validity of any settlement of it, by any thing they both, or either of them, have done in the past.

COMMONWEALTH v. KENNEDY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1894.

[Reported 160 Mass. 312.]

COMPLAINT, charging the defendant with violating the provisions of Pub. Sts. c. 69, § 5, by boarding a ship without obtaining leave, as therein required.

At the trial in the Superior Court, before BOND, J., there was evidence tending to show that the ship was unable to obtain a place at a wharf as desired, and was obliged to anchor in the harbor, that the captain was on board and in charge of the vessel, that the defendant