of A., in which his storekeeper slept, and on a lot contiguous to the house in which A. lived, but not in the curtilage. The sleeping in the house fixes its character, whether a dwelling or United States v. Johnson,* 2 Cr. C. C., 21.

not.

§ 1427. Extortion is the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due him, or in excess of what is due him, or before it is due him. United States v. Waitz,* 3 Saw., 473.

§ 1428. It is said to be extortion at common law to demand and receive illegal fees as an officer, or under color of office. Ming v. Truett, 1 Mont. T'y, 322.

§ 1429. Laboring to exact fees from one party to a suit, after receiving them from the other party, is not extortion. The court refused to instruct the jury that the offense was not indictable. United States v. Chenault, 2 Cr. C. C., 70.

§ 1430. The register of a land office cannot lawfully act as attorney for any applicant for a patent for mineral lands, whose application was filed, and the proceedings on which were to be conducted, before him and in his office. He cannot lawfully engage himself to an applicant to do all that may be necessary to get a patent, and charge a gross sum for his services, covering his legal fees and those he is not entitled to as register. If the sum taken in such a transaction is in excess of his legal fees, then the taking of the excess is extortion. United States v. Waitz.* 3 Saw., 473.

$1431. Section 12 of the act of March 3, 1825, defining extortion, having been re-enacted on June 22, 1874, as section 5481 of the Revised Statutes, after the cession of Alaska to the United States, is in force in that country proprio vigore. United States v. Carr,* 3 Saw., 302.

$1432. Section 12 of the act of March 3, 1825, defining the crime of extortion under color of office, so far as a deputy collector of customs is concerned, is a law relating to customs, and therefore extended over Alaska by section 1 of the act of July 27, 1838, which extended over this territory the laws of the United States relating to customs, commerce and navigation. Ibid.

1483. Embezzlement.- Under the sixteenth section of the act of March 3, 1825, declaring it to be a felony "if any person who shall be employed as president, cashier, clerk or servant in the Bank of the United States, . . . or in any office of discount or deposit, shall feloniously steal, take and carry away any money, goods, bond, bill, bank-note, or other note, check, draft, treasury note or other valuable security or effects belonging to the said bank, or deposited in said bank; or if any person so employed as president, cashier, clerk or servant shall fraudulently embezzle, secrete or make way with any money, goods, bond, bill, bank-note, or other note, draft, treasury note or other valuable security or effects, which he shall have received, or which shall come into his possession or custody by virtue of such employment," an indictment which does not allege the defendant to have been employed as president, cashier, clerk or servant in the Bank of the United States, or in any of its offices of discount and deposit, except by alluding to the defendant as “being then a book-keeper in the said office of discount and deposit," is not sufficient. The indictment must also allege that the things secreted or embezzled came into the hands or possession of the defendant by virtue of his employment. The things must have come into his possession by virtue of his authority from the bank. To say that they came into his hands while he acted as bookkeeper, or in virtue of his office as book-keeper, or as book-keeper, without showing that he was authorized by the bank to act as book-keeper, is not a suficient averment; it is not a sufficient allegation that they came "into his possession or custody by virtue of his employment." Under the second branch of this section, it need not be alleged that the things embizzled were the property of the Bank of the United States, nor need it be alleged that they were the prop rty of any person. The crime of embezzlement under this section must be alleged to have been done fraudulently. Where the act charged is the embezzlement of a check, it must be alleged that the check was a valuable security or a draft. United States v. Forrest,* 3 Cr. C. C., 56.

§ 1434. The crime of embezzle:nent is a species of larceny, and is applicable to the stealing of property by agents, clerks, servants, and, in general, by a person acting in a fiduciary capacity. In order to constitute this crime, it is necessary that the property embezzled should come lawfully into the hands of the party embezzling, and by virtue of the position of trust he occupies to the person whose property he takes. In this respect it differs from the crime of larceny, in which the property is unlawfully taken and retained. United States v. Lee,* 12 Fed. R., 816.

§ 1435. On an indictment for embezzlement of public funds by a collector of the customs, items in a treasury transcript, which are not established by the ordinary official action of the department, but are made up from estimates and hearsay, are not evidence. United States v. Forsythe,* 6 McL., 584.

1436. The provision respecting embezzlement in the act of congress of August 13, 1841, VOL. XII-25

385

includes, among those subject to its penalties, only "officers charged with the safe-keeping, transfer or disbursement of the public moneys, or connected with the postoffice department." The act of 1846 includes all officers and other persons charged by this act or any other act with the safe-keeping, transfer and disbursement of the public moneys." The latter act also punishes any officer who transmits to the treasury a false voucher, or a voucher which does not truly represent a payment actually made. But the provisions of this act all have reference to officers intrusted with the legal possession of public moneys, and not to subordinates. Under these acts, therefore, a clerk of the treasurer of the mint, appointed by the director, and who is not included among the officers of the mint as enumerated in the act under which he is appointed, is not liable for the embezzlement of the public moneys in the custody of the treasurer. United States v. Hutchison,* 4 Penn. L. J. Rep., 211.

§ 1437. Under section 5504 of the Revised Statutes, declaring guilty of embezzlement every officer of a court who fails forthwith to deposit such moneys as are required to be deposited "with the treasurer, assistant treasurer or a designated depositary of the United States," an assignee in bankruptcy is not included. He is an officer of the court, but the moneys he receives as assignee are not to be deposited in the places designated in this section. and are required by another section to be deposited in some bank to his credit. There seems to be no statute covering the offense by an assignee in bankruptcy. United States v. Bixby,* 6 Fed. R., 375.

§ 1438. A justice of the peace cannot discharge a prisoner committed for trial for felony, nor can he take money in lieu of bail. If such acts are done contemptuously, wilfully, and with evil intent, the justice is liable for misdemeanor in office. But if he acted through ignorance or mistake of law, and without any sinister or corrupt motive, he is not punishable. United States v. Faw, 1 Cr. C. C., 487.

§ 1439. Acting in office without giving bond.-It is held that an indictment lies for acting as constable without giving bond agreeably to the act of May 3, 1804. United States v. Evans, 1 Cr. C. C., 149.

§ 1440. Persons confederating with a public officer and procuring of him loans of public money intrusted to him for safe-keeping are guilty of a felony. United States v. Hartwell, 3 Cliff.. 227.

§ 1441. Bribery.- In the sixty-second section of the internal revenue act of July 16, 1866, enacting "that if any person or persons shall, directly or indirectly, promise, offer to give, or cause or procure to be promised, offered or given, any money, goods, right in action, bribe, present or reward, . . . . to any officer of the United States, . . . with intent to influence any such officer or person to commit, or aid and abet in committing, any fraud on the revenue of the United States, or to connive at, or collude in, or to allow or permit, or make opportunity for the commission of any such fraud, and shall be thereof convicted, such person or persons so offering . . . . shall be liable to indictment in any court of the United States having jurisdiction, and shall upon conviction thereof be fined,” etc., the words "and shall be thereof convicted" are to be treated as surplusage. The act is complete without them; and if any meaning at all is given to them, they render the act nugatory by making a previous conviction necessary to an indictment. United States v. Stern,* 5 Blatch., 512. § 1442. Where one was indicted for attempting to bribe a commissioner of the internal revenue, who was invested with authority to receive proposals for the building of a lighthouse, and there was no statute of congress punishing the offense, the court were divided in opinion whether the indictment could be supported at common law, and without such an act. United States v. Worrall, 2 Dal., 384.

§ 1443. Civil rights. The right to be secure in one's house is not a right derived from the constitution, and cannot be said to come within the meaning of the act of May 31, 1870, punishing a conspiracy to injure and oppress a citizen in the exercise of “any right, privilege or immunity granted or secured by the constitution of the United States." United States v. Crosby, 1 Hughes, 448 (S$ 2285-89). See §§ 235, 1750, 2567.

§ 1444. An ordinary offense against a colored person is not punishable by the laws of the United States unless committed because of his race, color or previous condition of servitude. United States v. Cruikshank, 1 Woods, 319.

§ 1445. A person indicted for excluding from the public school taught by him a boy, on account of his race and color, is not excused by the fact that he was advised by counsel that he had a right to exclude the child. United States v. Buntin,* 10 Fed. R., 730.

§ 1446. The recovery of damages for the deprivation of rights secured by the constitution and laws of the United States, in excluding a child from a public school on account of race or color, is no bar to an indictment for the same act, under section 5510 of the Revised Statutes, punishing any one who, by virtue of any law, ordinance, etc., deprives any inhabitant of any privileges, immunities, etc., secured or protected by the constitution and laws of the United States. Ibid.

§ 1447. Under section 5510, Revised Statutes, declaring that "every one who, under color of any law, statute, ordinance, regulation or custom, subjects, or causes to be subjected, any inhabitant of any state or territory to the deprivation of any rights, privileges or immunities secured or protected by the constitution and laws of the United States, on account of such inhabitant being an alien, or by reason of his color or race, .shall be punished," etc., a school teacher who excludes a colored boy from the public school taught by him, after being requested by the board of trustees to permit him to enter, claiming a right to do so under authority of a statute providing for the separate education of colore children, is liable, if he does so on account of the color of the boy. But if another school of equal merit has been provided by law for colored children, and reasonably accessible to the boy excluded, offering the same educational facilities and advantage, he is not liable. He is liable if the school for colored children was not reasonably accessible to the boy excluded. Ibid.

§ 1448. While a colored defendant, in a trial involving his life, liberty or property, cannot claim, as a matter of right, that his race shall have a representation on the jury, and while a mixed jury, in a particular case, is not, within the meaning of the constitution, always or absolutely necessary to the equal protection of the laws, yet it is a right to which he is entitled, that, in the selection of jurors to pass upon his life, liberty or property, there shall be no exclusion of his race, and no discrimination against them becaus› of color. So where it appears that colored persons are excluded from juries because of their color, a colored defendant has a right to have an indictment found by such a grand jury, and the panel of such a petit jury, quashed. Virginia v. Rives, 10 Otto, 322 (CONST., § 929–910); Neal v. Delaware, 13 Otto, 394.

§ 1449. It seems that a colored defendant in Delaware is entitled to show, on a motion to quash an indictment and panel of jurors for that reason, that the officers in selecting the grand and petit jurors purposely excluded colored persons therefrom on account of their race and color. Neal v. Delaware, 13 Otto, 394.

§ 1450. An affidavit of a colored defendant, that the officers charged with selecting the grand and petit juries had purposely excluded colored persons therefrom on account of race and color, which is uncontradicted and undenied, is sufficient to sustain a motion to quash the indictment and the panel. Ibid.

$1451. Cutting timber - "Timber" defined. The word "timber," in the act of March 2, 1831, prohibiting the being "employed in removing any live-oak or red cedar trees, or other timber from the lands of the United States," is employed to signify the felled trees, prepared for use and transportation, and embraces the various uses to which timber can be appropriated, either in ship or house building. The act does not punish the removal of any articles manufactured from such timber. United States v. Schuler,* 6 McL., 28.

1452. By the act of March 2, 1831, the cutting and using, for any other than naval purposes, of white-oak and hickory, or timber trees of any other description, from the lands belonging to the United States, is an indictable offense, and punishable by fine and imprisonment. This mode of protection is not limited to live-oak or red cedar, nor to timber specially reserved for naval purposes. United States v. Briggs,* 9 How., 351.

$ 1453. lands not reserved for use of navy.- An indictment will lie, under the act of congress, for cutting timber on public lands, whether such lands have been reserved for naval purposes or not. United States v. Redy,* 5 McL., 359.

§ 1454. one who employs another to cut timber on public lands is answerable under the act of congress. Ibid.

§ 1455. making compensation.- Where one convicted of cutting trees on the public lands, contrary to the act of congress, had made full reparation for the trespass by entering a part of the land on which the trees were cut, and compensating the person who entered the other part for the trees cut on that part, and the land was sold at the price fixed by law, and there seemed to be no intention on the part of the trespasser to defraud the public, a nominal fine was imposed by the court. United States v. Murray,* 5 McL., 207.

§ 1456. civil and criminal proceedings.-Section 2161 of the Revised Statutes having made the cutting of timber on the public lands a crime which may be proceeded against by indictment, the government may proceed against trespassers upon its land civilly or criminally, or both; and a judgment in one form of remedy is no bar to the prosecution of the other remedy. Bly v. United States, 4 Dill., 464.

§ 1457. intent. Under the act of March 2, 1831, punishing the offense of cutting or removing, etc., other timber than naval timber on other lands than naval lands, with intent to export, dispose of, use or employ the same in any manner whatever, other than for the use of the navy of the United States, if the specific act of cutting or removing be proved, the guilty intent will be presumed. But such inference of guilty intention may be removed by the defendant by proving that he was the agent of the owner of lands in the vicinage of those described in the indictment, and cut the timber described, by mistake, supposing it to belong

to his principal, the monuments of the public survey being such that the mistake might be committed. United States v. Darton,* 6 McL.. 46.

$1458. Robbery. The felonious taking of goods from the person of another, or in his presence, by violence or by putting him in fear, and against his will, is robbery. United tates v. Jones,* 3 Wash., 200. See $ 513, 529, 581, 577, 173), 2543. .

1459. The word “rob,” used in a statute, means stealing or taking from the person of another, or in the presence of another, property of any amount, with such a degree of force or terror as to induce the party to part with his property unwillingly. It is the felonious taking from the person of another money or goods of any value by putting him in fear. United States v. Wilson, Bald., 78.

§ 1460. The snatching of a watch from the pocket of another, it being fastened to his neck by a ribbon, which was broken by the first snatch, the owner not having been put in fear, is not robbery, but larceny. United States v. Simms. 4 Cr. C. C., 618.

§ 1461. dangerous weapon.- A sword or a dirk or a pistol in the hands of a robber, by means and under terror of which a person is robbed, is a dangerous weapon, although not drawn or pointed against the person robbed at the time. It is presumed that a pistol was baded, and conclusively so presumed when the robbers threaten to vse it in a manner impossible if it was not loaded. United States v. Wood,* 3 Wash., 440. See $ 148, 714, 1241, 1354.

$1462. Under revenue laws - Payment of money into treasury.-The act of June 30, 1849, requiring collectors of the customs to pay into the treasury certain moneys without any abatement for fees, salary, etc., does not, it seems, apply to a criminal prosecution where the law did not take effect until after the default for which the officer is prosecuted. United States v. Forsythe,* 6 MeL., 584.

§ 1463. fraudulent entry.- A fraudulent entry of goods at a custom-house by means of a false invoice and a false classification is an offense against the revenue laws and is not barred in less than five years. United States v. Hirsch, 10 Otto, 34.

§ 1464. - forgery of oath.- On an indictment for a forgery of an owner's oath with intent to defraud the United States, it is not necessary that an entry of the goods be actually United States v. Lawrence,* 13 made or any act done towards the completion of the fraud.

Blatch., 211.

§ 1465.

unlading without a permit.- The act of March 2, 1799, punishes with a penalty of $400, and disability for seven years to hold any office of trust or profit under the United States, the unlading or delivery of any goods from any foreign port, "at any time, without a permit from the collector or naval officer, if any, for such unlading or delivery.” It punishes in like manner, if any goods, etc., shall be unladen or delivered from any such ship or vessel, contrary to the direction aforesaid," "any person who shall knowingly be concerned or aiding therein, or in removing, storing, or otherwise securing the said goods." It is held that upon an information for aiding "in removing, storing, or otherwise securing" such goods with knowledge that they had been landed without license, it is not necessary to show that the defendant aided or did anything in connection with the landing of the goods. An information will lie for the penalty of this act, although the act itself provides that the Walsh v. United States, 3 penalty shall be sued for" in the name of the United States. Woodb. & M., 841.

§ 1466.

smuggling. As a general rule, unless there is some law forbidding it, it is not a crime to import goods into the United States without payment of duty. The crime of smuggling is not complete until the goods are not only brought into the country, but fraud or concealment has been practiced with intent to defraud the revenue. Thomas,*2 Abb., 116.

United States v.

1467. The nineteenth section of the act of August 30, 1842, does not apply to the case of goods imported from any adjacent foreign territory. An indictment charging the defendant with smuggling goods from Canada into this country, without an invoice or the payment of duties, cannot be supported by that section. United States v. Nolton,* 5 Blatch., 427. § 1468. resisting officers.- Where rags in the bale were picked up on the shore, to which they had floated from a wrecked vessel, and those gathering them were indic ́ed under the act of March 2, 1799 for "forcibly resisting, preventing and impeding" the custon: house officers in seizing the rags for non-payment of duties, the jury were instructed that there must have existed a probable ground of seizure; that if the rags were worthless on the beach, and the custom-house officer knew it, there was no ground for seizure; that the government must show an actual seizure, and that the defendants knew of it; that they must also prove that the actual possession of the rags by the officer was forcibly ousted by the defendants; that, if the seizure was abandoned by the officer, the defendants had a right to take the rags; and that if the defendants did believe that no seizure had been made, and acted in good faith in removing the goods, they were not guilty; but if the goods had been rightfully seized, and

the defendants, knowing the facts, forcibly and wilfully deprived the officers of the possession of the goods, they were guilty. United States v. Cook,* 1 Spr., 213.

§ 1469. In District of Columbia.- The act of congress of February 16, 1819, entitled “An act to incorporate the Medical Society of the District of Columbia," providing for the appointment of a medical board of examiners, and declaring "that, after the appointment of the aforesaid medical board, no person, not heretofore a practitioner of medicine or surgery within the District of Columbia, shall be allowed to practice within said District in either of the said branches, and receive payment for his services, without having first obtained a license, testified as by this law directed, or without the production of a diploma as aforesaid, under the penalty of $50 for each offense," etc., is applicable to every branch of medicine and surgery, and includes one practicing a specialty, such as an oculist. United States v. Williams 5 Cr. C. C.. 62.

§ 1470. A physician cannot be held liable unless there was a board of examiners de jure at the time of the violation of the statute charged. It is therefore incumbent on the United States to allege and prove the existence of such a board at the time of the alleged violation of the statute. Ibid.

§ 1471. Under the charters and by-laws of the corporation of Washington, authorizing justices of the peace to require of disorderly persons security for their good behavior, and on failure to give security to commit them to labor until such security shall be given, not exceeding one year at a time, a warrant of commitment which states that the accused had failed to give security for her good behavior, but does not state that such security was required of her, nor in what sum, nor for what time, and which requires her to be kept at hard labor, instead of labor, as required by the by-law and charter, is defective, and is not sufficient to detain the accused. Ex parte Reed,* 4 Cr. C. C., 582.

$1472. The charter of 1820, of the city of Washington, gives that corporation power and authority to cause vagrants, idle or disorderly persons," and all "who shall be guilty of open profanity, or grossly indecent language or behavior publicly in the streets,” to give security for their good behavior, for a reasonable time, and to indemnify the city against any clarge for their support; and in case of their refusal or inability to give such security, to cause them to be confined to labor until such security shall be given. The corporation has exercised this authority by enacting by-laws and ordinances. The English statute of 34 Ed. 8, authorizing justices of the peace to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behavior," was in force in Maryland on the 27th of February, 1:01, and constitutes a part of the authority and jurisdiction of the justices of the peace of Washington county who have been appointed under the act of congress of that date. Justices of the peace have authority to require of disorderly persons security for good behavior, and to commit for failure tɔ give security, under the bylaws passed under the authority of the charter of 1820. Ibid.

§ 1473. The act of congress creating the police court of the District of Columbia, and vesting it with original and exclusive jurisdiction of all offenses against the United States committed in the District of Columbia, not deemed capital or otherwise infamous crimes; that is to say, of all simple assaults and batteries, and all other misdemeanors not punishable Ly imprisonment in the penitentiary," vests exclusively in the police court jurisdiction of the offense of stealing any money or other goods and chattels of any kind whatever, or any bank-bill or promissory note of less value than $35, punished by the act of congress of Febru ary 22, 1867, by fine not exceeding a certain sum, and imprisonment in the jail of the District. United States v. Cross,* 1 MacArth., 149.

$1474. The penitentiary act for the District of Columbia, of March 2, 1831, enacting "that if any free person shall, in said District, unlawfully, by force and violence, take and carry away, or cause to be carried away; or shall, by fraud, unlawfully seduce, or cause to be seduced, any free negro or mulatto from any part of said District, to any other part of said District, with design or intention to sell or dispose of such free negro or mulatto," etc., such person shall be punished by fine, does not apply to such negroes kidnapped out of the District and brought within it. United States v. Henning, 4 Cr. C. C., 645.

XIX. ARREST.

§ 1475. Affidavit – Probable caus?.- Under the fourth amendment to the constitution of the United States an affidavit to justify the issuing of a criminal warrant must show probable cause. So an affidavit for the arrest of a person under section 5423, Revised Statutes. for using a fraudulent certificate of citizenship for the purpose of obtaining registration as a voter, which alleged that a person did, for the purpose of procuring himself to be unlawfully registered as a voter, make use of a certain unlawful certificate, kaowing that such certifi