§ 51.

- Neglect of Party's Agent. - The neglect of the party to whom the means have been given by the parent does not make the latter guilty.1

§ 52. Neglect to Support Wife-Test of Liability. In order to sustain an indictment for this, it is necessary to prove that the wife was in need of food, lodging or clothing and that the husband was able to provide it but willfully and without lawful excuse refused or neglected to do so. The obligation is not the absolute one under all circumstances to provide food, clothing or lodging for the wife. The willful refusal or neglect to do so without lawful excuse is what constitutes the offense. If it appear that the refusal or neglect instead of being willful is attributable solely to want of ability; that the wife is better able to support herself than the husband to support her; that she is in no need whatever of support, and does not ask for it or request it; that she is living with another man as his wife, or that without justification she absents herself from the husband's roof and without excuse refuses to return-in these and similar cases it would be absurd to convict the husband as a criminal.2

§ 53. Abandonment of Wife -- Refusal to Live with Wife - Failure to Support -- Husband must be Able. - A mere refusal by a man to live with his wife, or a failure to support her, does not constitute abandonment of her within the Alabama statute. A charge, therefore, that a man "having a family did abandon them and leave them in danger of becoming a burden on the public," is insufficient, for it should allege his ability either by his means or his industry to support them.3

§ 54.

Wife Refusing to go to Husband's House. And a husband ready to provide for his wife at his own house is not obliged to provide for her elsewhere, if she refuse to go there."

§ 55. Concealing Birth of Child - Concealment Necessary. — Strict proof of the effort to conceal the birth is requisite."

In R. v. Higley, Sarah Higley was delivered of a child whose dead body was found at her father's house in a bed among the feathers. There was no evidence to show who placed it there, but it being proved that the woman had sent for a surgeon at the time of her confinement, and had prepared child's clothes, the judge directed an acquittal on the charge of concealing the birth of the child.

§ 56. Secret Disposition Necessary. - There must be a secret disposition of the body. Thus placing the child in an open box in the prisoner's bedroom, and afterwards, on inquiry by the medical man, informing him that it was in the box where it was found, is not within the law."

§ 57.

born dead.8

Child Born Dead. - The crime is not committed where the child is

1 R v. Bubb, 4 Cox, 457 (1851).

2 R. v. Nasmith, 42 U. C. Q. B. 249 (1877).

3 Boulo v. State, 49 Ala. 23 (1873).

4 People v. Pettit, 74 N. Y. 520 (1877); People v. Naehr, 1 N. Y. Crim. Rep. 513 (1871). State v. Conover, ante, p. 84.

4 C. & P. 366 (1830).

7 R. v. Sleep, 9 Cox, 559 (1864); R. v. May,

10 Cox, 448 (1867); R. v. George, 11 Cox, 41 (1868).

8 State v Joiner, 4 Hawks, 350 (1826).

CHAPTER II.

CRIMES AGAINST THE GOVERNMENT.

TREASON AGAINST UNITED STATES NOT TREASON AGAINST STATE.

PEOPLE V. LYNCH.

[11 Johns. 549.]

In the Supreme Court of New York, October, 1814.

1. Giving aid and Comfort to the Enemies of the United States, is not treason against the State of New York.

2. Treason Against the United States is not cognizable in a State court.

The defendants who were now brought up on habeas corpus were indicted at the General Sessions of the Peace in the City of New York, in August last, for treason against the State. The indictment and proceedings having been removed into this court by certiorari, Colam moved that the prisoners should be discharged. He read the commitment and the indictment, and contended that there was no crime charged against this State; that the indictment did not even state any crime cognizable by the laws of the United States. But if the facts stated amounted to treason against the United States, it would not be a crime against this State. It might, perhaps, be said, that this was a case in which the courts of this State have a concurrent jurisdiction with those of the United States. If so, it would follow, either that the United States would be ousted of its jurisdiction, or that the party might be twice tried for the same offense; for either the courts of this State have a right to try the defendants in exclusion of the United States, or they must be liable to be twice put in jeopardy for the same offense. It is not denied that there may be treason against this State, as in case of insurrection or rebellion against the particular laws of this State. The indictment here states that the subjects of Great Britain became enemies of this State, in consequence of the war declared by the United States, and being enemies, etc. (He was stopped by the court, who desired to hear the district attorney.)

Hawkins (acting for the District Attorney), contra.

The indictment is founded on the first section of the act relative to treason,1 which declares, "that if any person do levy war against the people of this State within this State, or be adherent to the enemies of the people of this State, giving them aid and comfort in this State elsewhere and be thereof attainted of open deed, such offenses and no other, shall be adjudged treason against the people of this State." The first objection which may be made is, that the offense ought first to have been inquired into by this court, the sixth section of the statute declaring that all offenses declared to be treason, committed upon land out of this State or on the sea, shall be inquired of, heard and determined in the Supreme Court by good and lawful men of the same county where the said court shall sit in like manner as if the treason had been committed within the same county. But it was not intended by this section of the act, that this court should make the first inquiry as to the fact, but that they should finally inquire and determine by a jury, and give judgment thereon. It does not prevent a grand jury of the General Sessions of the Peace from inquiring into the fact, and finding a bill of indictment against the party, which, may, then, be removed into this court for trial and judgment. An indictment is only an accusation. It is sufficient in an indictment,.that the charge of high treason be reduced to a reasonable certainty so that the defendant may be apprised of the nature of it and be prepared to answer it.3 In a case of so enormous a crime the court will not quash an indictment. Courts do not quash indictments on formal objections in cases of treason or murder.4 As to the jurisdiction of the courts of the State to try this offense, there is nothing expressed in the Constitution of the United States against it. The second section of the fourth article, declares that persons charged in any State with treason or felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State be delivered up to be removed to the State having jurisdiction of the crime.

There is no law of Congress inhibiting the interference of the State courts. On the contrary, the second section of the act of April 30th, 1790, authorizes the magistrates of the different States to receive information of treason.

The judiciary act5 declares that the Circuit Courts of the United States shall have exclusive cognizance of all crimes or offenses cognizable under the authority of the United States, except where the laws of the United States shall otherwise The State courts have con

1 Sess. 24, p. 29 (N. R. L. 145).

2 4 Bla. Com. 452; 2 Hale P. C. 154, 158. Foster's C. L. 294.

direct.

43 Com. Dig. 509; 2 Hawk. P. C. 366; 3 East, 162.

6 sec. 11.

current power with those of the United States in numerous cases which might be stated.1

In the exercise of the concurrent power, the State courts must act in subordination to the United States. In case the State courts acted against the power of the United States, the courts of the United States might issue a prohibition to them. Until, however, the collision between the courts of the two governments exists, the State courts may act. The individual States are sovereign and independent, except in matters ceded to the General Government of the United States. Under the old Confederation, the powers of the States were the same. Persons were indicted and tried in the courts of Pennsylvania in 1778, and 1781, for high treason in adhering to the enemies of the State and of the United States.2

The laws of most of the different States, in relation to treason, declare it to consist in taking commissions under the enemies of the State or United States, or aiding or assisting the enemies of the State and of the United States,3 etc., which shows that the courts of these States take cognizance of high treasons committed by aiding the public enemies of the United States.

PER CURIAM. The grounds relied upon for the discharge of the prisoners are, (1) that the facts charged in the indictment do not amount to the crime of treason against the State of New York, and (2) that the State courts have no jurisdiction of treason against the United States.

The indictment, containing several courts which are substantially alike, after setting out a state of war between the United States and Great Britain, declared and carried on under the authority of the United States, alleges that the prisoners, being citizens of the State of New York, and of the United States of America, as traitors against the people of the State of New York, did adhere to, and give aid and comfort to the enemy, by supplying them with provisons of various kinds on board a public ship of war, upon the high seas. It has been attempted on the part of the prosecution, to support the indictment under the statute of this State, which declares treason against the people of this State to consist in levying war against the people of this State, within the State, or adhering to the enemies of the people of this State, giving them aid and comfort in this State, or elsewhere. And it has been said, that this act is nugatory, unless it applies to cases like the present; but this by no means follows, for there can be no doubt but such

1 Livingston v. Van Ingen, 9 Johns. 507, 564, 572; 4 Binn. 487; 5 Binn. 512.

21 Dall. 32, 39; 2 Dall. 86, 87.

Laws of Pa., vol. 1, p. 435; Stat. Conn. 654; Stat. Mass., vol. 3; Laws of Vt., vol. 1, p. 332; Laws of Del. 38; Laws of N. J. 208. 41 N. R. L. 145.

a state of things might exist as that treason against the people of this State might be committed. This might be by an open and armed opposition to the laws of the State, or a combination and forcible attempt to overthrow or usurp the government. And, indeed, the State, in its political capacity, may, under certain special circumstances pointed out by the Constitution of the United States, be engaged in war with a foreign enemy. But no such circumstances are stated in this indictment. Great Britain can not be said to be at war with the State of New York, in its aggregate and political capacity, as an independent government, and therefore, not an enemy of the State, within the sense and meaning of the statute. The people of this State, as citizens of the United States, are at war with Great Britain in consequence of the declaration of war by Congress. The State in its political capacity, is not at war. The subjects of Great Britain are the enemies of the United States of America, and the citizens thereof, as members of the Union, and not of the State of New York, as laid in the indictment.

The alteration in our statute, since the adoption of the Constitution of the United States, plainly shows the sense of the Legislature on this subject. By the act, as it stood in the year 17871 it was made treason to adhere to, or give aid and comfort to the enemies of the State of New York or of the United States of America. But in the several revisions of the law, since the adoption of the Constitution, the latter words have been omitted, as unnecessary and inapplicable to the situation of the State, as a member of the Union. Under the old Confederation, there was no judicial power organized and clothed with authority for the trial and punishment of treason against the United States of America. It became necessary, therefore, to provide for it under the judicial powers of the several States; no such necessity exists under our present system. According to this view of the subject, it would seem unnecessary to notice the question of jurisdiction; for admitting the facts charged against the prisoners to amount to treason against the United States, they do not constitute the offense of treason against the people of the State of New York as charged in the indictment. The offense not being charged as treason against the United States, the present indictment can not be supported, even admitting this court to have jurisdiction. We would barely observe, however, that we think the jurisdiction of the State courts does not extend to the offense of treason against the United States. The judicial power of the United States extends to all cases arising under the Constitution and laws of United States. The declaration of war was by a law of Congress; and in consequence of which, it became criminal in the prisoners to afford

11 G. Ed. Laws, 316.