that a man could lewdly expose his naked person to inmates of two dwelling-houses, as was said in the case of Reg. v. Holmes, 6 Cox C. C. 216, "this would not be a country fit to live in if such an abominable outrage could go unpunished." According to the law of this offense the place is a public oue if the exposure is such that it is likely to be seen by a number of casual observers. In the case of Reg. v. Farrell, 9 Cox C. C. 446, which is an authority relied upon by the defense in the present instance, it was declared that by an indecent exposure in a place not far from a highway the commonlaw offense had not been committed, but the court was careful to supplement its decision with the remark "that it is not to be taken that we lay down that if the prisoner was seen by one person, but there was evidence that others might have witnessed the offense at the time, we would not uphold the conviction." Sup. Ct., N. J., February, 1884. Van Houten v. State. Opinion by Beasley, C. J. (46 N. J. L. 16.) (See 15 Eng. Rep. 151; 67 Barb. 226; 4 Hun, 636; 55 N. H. 242. -ED.)

of the injured party made to the officer, under the circumstances, as being sufficiently connected with the principal event to be the natural outgrowth of it, and free from the suspicion of plan or after-thought. Upon this subject the authorities are not uniform. Some courts are inclined to hold the rule with much strictness as to the time and circumstances under which the statements proposed to be shown are made, while others allow a wider range for its application, leaving it to be applied largely in the sound discretion of the trial court. 15 Am. Law Rev. 85; Com. v. Densmore, 12 Allen, 537; People v. Davis, 56 N. Y. 102; Com. v. McPike, 3 Cush. 184; Insurance Co. v. Mosley, 8 Wall. 397; O'Connor v. Railroad Co., 27 Minn. 171; S. C., 6 N. W. Rep. 481. Our examination leads us to couclude, that especially in cases of tort involving personal injury, the weight of authority in this country is in favor of allowing evidence of the declarations or statements of the injured party, touching the cause or circumstances of the injury, made so soon after the event, and under such circumstances as to warrant the trial court in presuming that they grew out of and were dependent upon it, and could not have been devised or contrived by the declarant for his own purposes. Insurance Co. v. Mosley, Wall. 397; Harriman v. Stowe, 57 Mo. 93; Driscoll v. People, 47 Mich. 416; S. C., 11 N. W. Rep. 221; Jordan's case, 25 Grat. 945; People v. Vernon, 35 Cal. 51; Burns v. State, 61 Ga. 194; Augusta Factory v. Barnes, Ga. Sup. Ct. April, 1884. In the last case the party was severely injured while employed in a factory. She was removed to her home, and about one-half hour after, while enduring severe bodily suffering, which had continued in the interval, she made a statement to her father of the particulars of the cause of the accident, which the eourt held proper to be received as part of the res gesta. In O'Connor v. Railroad Co., 27 Minn. 173; S. C., 6 N. W. Rep. 481, this court after reviewing the cases, and in considering this subject generally, say "that a considerable time may elapse and yet the declaration be a part of the res gestæ," and "that each case must depend on its own peculiar circumstances, and be determined by the exercise of sound judicial discretion.". In the case at bar the witness had been waylaid and robbed. He had suffered personal violence. A great crime had been committed. He had specially observed and marked his assailants at the time. And while great care and discrimination should be exercised in receiving evidence of this kind, we are unable to say that the court erred in its judgment in this case in admitting the evidence in question. It might be considered that when the declarant thus described the men who had assaulted him, whom it appeared he had never before seen, his mind was still so occupied and absorbed with his exciting and hazardous experience as to maintain for so brief a period a close and natural connection between the event and his statements to the officer, and that hence such statements would be the direct and natural outgrowth of the robbery and its concomitants, and they would derive a special credit from that fact (though they would otherwise be hearsay), and would also be relieved from the suspicion of device or afterthought. See Whart. Ev., § 259; 1 Greenl. Ev., § 108. It was clearly competent for the witness to testify that he recognized and identified the same parties the next morning at the police station, and the particulars of such identification were properly received. We see no error or abuse of discretion in the refusal of the court to grant a new trial on the ground of newly discovered evidence. Order affirmed. Sup. Ct. Minn., Oct. 13, 1884. State v. Horan. Opinion by Vanderburgh, J. (See 35 Am. Rep. 30; id. 596; 28 Eng. Rep. 592: 31 id. 741; 78 Mo. 380; 69 Ga. 68; 39 Ohio St. 74; 61 Miss. 158, 161.-En.)

GRAND JURY-CHALLENGE TO.-At common law the sheriff of every county was required to return to every session of the peace, and every commission of øyer and terminer, and of general jail delivery, twentyfour good and lawful men of the county, some out of every hundred, to inquire, present, do and execute all those things which the law required. 4 Bl. Comm. 302. The jurors returned were to be good and lawful; that is, men free from objections, such as bias, prejudice or other objection affecting their fairness or impartiality. In other words, grand jurors, like petit jurors, were required to be indifferent between the parties, and be guided solely by the evidence in determining whether or not an indictment should be found against the accused. People v. Jewett, 3 Wend. 314; United States v. White, 5 Cranch C. C. 457; Com. v. Clark, 2 Brown (Penn.) 325; State v. Gillick, 7 Iowa, 287; People v. Manahan, 32 Cal. 68; State v. Quimby, 51 Me. 395; Whart. Crim. Pl., § 346; Newman v. State, 14 Wis. 393. But personal objections to the fairness of jurors must be'made before the jury is impanelled and sworn. People v. Jewett, 3 Wend. 321. The practice in this State has been for the court to examine the jurors as to their qualifications before the jury is impanelled. If the jurors are found to be legally qualified, and no personal objectious as to bias or prejudice are made against any of them, the jury is impanelled and sworn. Objections on the ground of prejudice or bias, if made afterward, cannot be considered. In the case at bar the plaintiff did not ask leave to examine the jurors until after the jury had been impanelled and sworn. There was no error therefore in overruling the application. Patrick v. State. Sup. Ct. Neb., July 1, 1884. Opinion by Maxwell, J. (20 N. W. Rep. 121.)

EVIDENCE-ASSAULT AND ROBBERY-DECLARATIONS -RES GESTÆ.-In cases involving personal injury, evidence of declarations of the injured party, touching the cause or circumstances of the injury, made soon after and in close connection with the event, and appearing to grow out of and be dependent upon it, and under such circumstances that they could not reasonably have been contrived for the purposes of the declarant, is admissible as part of the res gesta. The complaining witness was waylaid, knocked down, and robbed in a public street at night. The assailants then fled, and the witness immediately gave the alarm, returned to his house near by, and a few minutes later, on the arrival of a police officer, described to him the appearance of the persons who made the assault. Upon the trial, after the details of the assault and robbing had appeared in evidence, held, that the trial court might properly receive proof of the statements

The Albany Law Journal.

ALBANY, JANUARY 10, 1885.

CURRENT TOPICS.

THE unseemly spectacle which has lately been dis

archy and confusion, for it will soon be upon us in the direst forms. The lawyers who invented this process of throttling their political opponents are open to the gravest censure at the hands of all respectable law-abiding men.

It may be possibly thought that we are inclined to bestow more attention upon some of the objectors to codification than their objections intrinsically merit, and there is force in this suggestion. But when the New York City Bar Association sees fit to promulgate the social theories of such neo-philosophers as Mr. J. Bleecker Miller it magnifies them into prominence, and we may be excused from dwelling upon them. Mr. Miller detects latent incendiarism, social retrogressions to barbarism, and lynch law in codification, and he avows it, and the association deliberately prints it. Now gentlemen with conclusions so radical as these are bound to furnish facts or else they are open to the suspicion that their theories are examples of false induction. We deny that any of the conditions of our political society warrant any such notions as those in the awful horoscope of the gloomy introspective Mr. Miller. The inventors of radical social theories should before announcing them subject them to the methods pursued by the other professors of social science, experiment and verification. The fashionable modern philosophy of Spencer, Fiske, Maine and other recondite thinkers is the result of laborious research into the facts of social evolution and of the inductive method in scientific research. It is not a philosophy of high sounding terms and hasty conclusions only; but this is generally conceded and need not be emphasized. If anybody thinks he can palm off on an intelligent American public a new social theory produced off-hand out of a superficial German mysticism, half understood, and the mere terms of modern English philosophy wholly misapplied, he is greatly mistaken. We have no patience with quackery in any profession, and a learned association which sees fit not only to tolerate on its records, but to print such hasty generalizations as those of Mr. Miller, well deserves to share in the ridicule which Molière bestowed on the French doctors of the seventeenth century. If the City Bar Association will spare the public any more theories such as that codification leads to lynch law we shall then be able to spare our space for more important matters.

played in the courts of justice, held in the city of New York, in which the aldermen have alternately been enjoined and released, has only been surpassed in unseemliness by the eagerness of the aldermen to measure out the office-spoils of that unfortunate city. Whatever the provocation, snap injunctions upon inadequate grounds do not seem to people outside of the city ot New York to be the proper remedy for aldermanic misconduct. The late mayor was certainly an unfortunate example of the ordinary American idea that special training is unnecessary for public office and that a good and sagacious merchant may be turned into a good any thing else he chooses at a moment's notice. He appears to have barricaded himself in the mayor's office during the excitement, in order to avoid the inquest of the grand jury which his friends professed to fear was wholly in the interest of Mr. Grace, his opponent. The entire machinery of the courts and of the county appears in fact to have been involved in the interest of Mayor Grace's new administration, the desire of his friends being that he and not the out-going mayor should fill the vacant public offices. In other words, a political struggle between the adherents of Mayor Grace and the adherents of Mayor Edson was championed by the judges and the scene of its conflict transferred to the halls of justice, where a ridiculous pugilistic contest against time and somewhat impromptu took place. If this kind of spectacle is permitted to go on in the interest of the politicians why not rename some of the tribunals after the shade of political opinion entertained by the judges; one might be the "Court of the County Democracy," another the "Court for Tammany Hall," and a third the "Court of the Straightout Republicans." In this event there need be no subterfuge and all sides could be equally protected by injunctions and vacaturs, while an over-zealous grand jury of the county could be quashed all around. Seriously speaking we think the course of Mayor Grace's friends most demoralizing, and that it would have been far better in the interests of public decency and morals that Mayor Edson should have been permitted to appoint to office the worst elements of society than that Mayor Grace should have gained the day by the methods chosen by his advisers. What the unfortunate tax payers of New York city must think of its judicial machinery, is the worst aspect of this whole affair. If there is any power in the State to call all the participants to a rigid account it should be immediately invoked, for a more seriously wicked and vulgar display has never been seen in the solemn halls of justice. If this sort of thing is permitted to go on uuchallenged by the powers of the State we may as well give ourselves over to anVOL. 31-No. 2.

We fully agree with the Virginia Law Jounal, that the judges ought not to make the head-notes for their reported decisions. The Journal says:

"It does not follow that the man who does the work is best qualified to interpret it and state its results with accuracy and conciseness, any more than it follows that a great author must be also a great critic and analyst. The two things require different faculties of mind; and while it is not impossible that these faculties should unite in an individual we believe it is very rarely the case that they do, since they are in fact somewhat antagonistic. One

Contradictory reports reach us about the health of Chief Justice Waite. It would seem that his illness

although serious is not so critical as was at first rep

resented. At all events there is no excuse for the the 4th of March, and the assignment of his office indecent speculations upon his possible death before which the partisan newspapers have published. It is hoped that the honored chief will be spared many years to continue the example which he has set of an able, dignified, impartial and modest administration of his great office.

rections of the proposed head-notes of the reporters.IN
They are always for amplification and hedging-
about, and very seldom fail to make the reporter's
work worse than it was. Let not the judges go
yond their bench; they are no reporters.

Philadelphia, Wilmington and Baltimore R. Co. Hoeflick, Court of Appeals of Maryland, Oct. 1884, 18 Rep. 822, it was held that the fare of a child in charge of a passenger on a railroad train is properly chargeable to the passenger, and if the latter refuses to pay it both may be ejected from the train, though the passenger had paid his fare. The court said: "The plaintiff had paid her own fare, and the defendant had no right of course to eject her from the train, unless there was a contract, express or implied, on her part to pay the fare of her younger sister. There is no evidence of an express contract, and if one is to be implied it must be on the ground that the younger sister was under her

charge, and being under her charge and thus responsible for her presence in the car, it was her duty to see the fare was paid. The defendant was under no obligation, of course, to carry the younger sister without being paid a reasonable compensation, and if she was under the plaintiff's charge it is but fair and reasonable to hold her responsible for the fare. Under such circumstances the law would imply an agreement on her part to pay the fare of the child, and if she refused to pay it, the defendant had the right to put off both, the plaintiff and the childthe plaintiff, because she had not complied with the contract on her part implied by law, and the child, because the company was not required to carry it unless its fare was paid according to the rules and regulations of the company."

In Crocker v. McGregor, 76 Me. 282, an action for an injury to the plaintiff by the fright of her horse, by steam escaping from the defendant's mill, situated on the margin of the public highway, held, that evidence was admissible to show that other horses, ordinarily safe, when driven by it on other occasions a short time before and after, when the construction and use of the mill were the same as when the plaintiff was injured, were frightened by it. The court said: "The issue was, whether the mill as constructed and used, with the steam escaping into the way, was a nuisance to the public travel. Evidence showing that it naturally frightened ordinary horses when being driven by it, was competent to show its effect upon the public travel, its character and its capacity to do mischief. Its effect on horses was not dependent upon the acts of men, which may be the result of incapacity or negligence, but was caused by action of the inanimate thing upon an animal acting from instinct. It was not to show that other parties were injured at the same place by the same cause, and is therefore distinguishable from cases against towns for injury from defects in a highway, in which this court has held that evidence of accidents to others at the same place is inadmissible, because it raised too many collateral issues. Here the only issue is the effect of the sight and sound of the steam upon ordinary horses, as tending to show that travel over the way was thereby rendered dangerous. Hill v. P. & R. Railroad Co., 55 Me. 439; Burbank v. Bethel Steam Mill Co., 75 id. 373; S. C., 46 Am. Rep. 400. We think the competency of the evidence rests upon the same principle as evidence, in actions against railroad corporations for damage by fire, alleged to have been set by coals or sparks from a passing locomotive, that the same locomotive, or others similarily constructed and used, have emitted sparks and coals, and set fire at other places and on other occasions. It tends to show the capacity of the inanimate thing to do the mischief complained of. Grand Trunk R. Co. v. Richardson, 91 Ú. S. 454; Whitney v. Inh's of Leominster, Mass. Supreme Court, not yet reported."

In Kelley v. City of Columbus, Ohio Supreme Court Commission, June, 1884, Cin. L. Bull, Supp., it was

held that a city is not liable for an injury resulting from the unsafe or dangerous condition of its lands adjacent to a street where the place of danger is so far from the street that no iujury can result to persons in the ordinary and proper use of the street, and the fact that a pavement was continuous from a sidewalk on a street, over the adjacent lands to the place of danger, was not, of itself, an implied invitation to a person on the sidewalk to go upon the The court said: "If business is adjacent lands. carried on upon the lot, or any curiosity kept there open to the public, or any inducement or allurements held out to the public beyond a mere permission to go there, the duty to keep the premises safe arises; but if a lot is left unfenced, a person who goes upon it by bare permission, because there is no obstruction to keep him off, goes at his own risk. Railway Co. v. Bingham, 29 Ohio St. 364; S. C., 23 Am. Rep. 751; Beck v. Carter, 68 N. Y. 283; S. C., 23 Am. Rep. 175. There is no proof in the case to show that there was any thing whatever on the city lot to induce or invite any person to go upon or across it for any purpose unless for the purpose for which the plaintiff went there; " i. e., to urinate; nor is there any proof that the plaintiff went there upon any business with any person there, or for any purpose whatever, except to get into the darkness in the shadow of the building. If there had been a business room in the building, or upon another part of the lot, which would have been an implied invitation to the public to go there, it still would not help the plaintiff when he admits that he did not go upon the lot for any such purpose. The fact alone that the stone pavement extended from the street about twenty feet to the front wall of the first story and around the corner of the building about twelve feet, along the east side of it, cannot be treated as an implied invitation to a person passing along the street to turn aside and follow it in the darkness across private property, without any purpose or object that could have been foreseen or anticipated by the owner of the property. If the pavement beyond the limits of the street led to any place where persons on the street might be expected to go for any legitimate purpose, the result would be different. The city should not be held to foresee or anticipate that persons would leave the sidewalk and go along the side of the building for the purpose for which the plaintiff went there. And if not, the fact that it extended the stone pavement to the open area, or if it had extended it much farther, would not have been, of itself, an implied invitation to the plaintiff or to any passer on the street to use the pavement." See Lang v. Cleveland, etc., R. Co., 78 Ind. 323; S. C., 41 Am. Rep. 572.

In Socher's Appeal, Pennsylvania Supreme Court, Jan. 1884, 41 Leg. Int. 501, a husband left all his property to his wife on her promise to keep it for their children. After his death she married again, and devised all her property to her second husband. Held, that equity had jurisdiction to enforce the trust against the second husband, and the children

need not be confined to the remedy of ejectment. This is in harmony with O'Hara v. Dudley, 95 N. Y. 403; S. C., 47 Am. Rep. 53.

of the fugitive's guilt. It is sufficient if an authenticated copy of an information is produced. In re Hooper, 52 Wis. 702; State v. Hufford, 28 Iowa, 391. In the first case the court speaking through Mr. Justice Cole say: "While the act of Congress speaks of an indictment found or an affidavit made before a magistrate, yet I do not think it was intended Tis no objection to the granting of the warrant to exclude a case where the charge is in the form of

INTER-STATE EXTRADITION.

II.

I that the offense, made a crime or misdemeanor by a criminal information. It is no objection to the

the laws of the demanding State, is not a crime or misdemeanor under the laws of the State to which the fugitive has fled and from which he is demanded. Work v. Corrington, 34 Ohio St. 64; S. C., 82 Am. Rep. 345; People v. Brady, 56 N. Y. 188; Kentucky v. Dennison, 24 How. 66; on this point also the discussion of the United States Supreme Court is final. In Kentucky v. Dennison, Chief Justice Taney on behalf of the court disposes of this question in these words: "The argument on behalf of the governor of Ohio which insists upon excluding from this clause new offenses created by a statute of the State and growing out of its local institutions and which are not admitted to be offenses in the State where the fugitive is found nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with any thing like certainty? Who is to mark it? The governor of the demanding State would probably draw one line and the governor of the other State another, and if they differed who is to decide between them? Under such a vague and indefinite construction the article would not be a bond of peace and union but a constant source of controversy and irritating discussion." It is also necessary to inquire what preliminary steps must be taken to justify the executive in complying with the requisition. The act of 1793 requires the executive of the demanding State to produce to the governor of the State upon which the deman 1 is made " a copy of an indictment found or an affidavit made before a magistrate of any State or Territory" charging the fugitive with having committed treason, felony or other crime and duly authenticated by the executive. In construing this provision of the statute the courts have uniformly held that the requisition must be founded upon an authenticated copy of an indictment, information or affidavit, and that the mere statement by the governor of the demanding State that the fugitive stands charged with a crime in the State is insufficient. In re Doo Woon, 18 Fed. Rep. 898; Soloman's case, 1 Abb. Pr. (N. S.) 347; Matter of Rutter, 7 id. 67; Ex parte Pfitzer, 28 Ind. 451; Ex parte Thornton,

9 Tex. 635.

The affidavit, information or indictment should be duly authenticated by the executive. Solomon's case, 1 Abb. Pr. (N. S.) 347. It should also appear that the fugitive is charged with a crime in the demanding State. Ex parte Lorraine, 10 Nev. 63. However it is not necessary that there should be an authenticated copy of an indictment or affidavit, although the act does not in express terms authorize the granting of the warrant upon any other evidence

warrant that the indictment on which it is predicated is technically insufficient. The court will not inquire into its sufficiency, provided it appears to charge an offense made a crime by the laws of the demanding State. Davis's case, 122 Mass. 324; In re Voorhes, 32 N. J. L. 141; In re Greenough, 31 Vt. 279; In re Clark, 9 Wend. 212. In People v. Brady 56 N. Y. 182, the court held that an affidavit which did not set forth facts sufficient to constitute a crime at common law as that law had been interpreted by the courts of that State, was not sufficient to sustain an executive warrant for the apprehension and surrender of the fugative, the court saying: "It is a reasonable rule supported by obvious considerations of justice and policy that when a surrender is sought upon proof by affidavit of a crime the offense should be distinctly and plainly charged." The affidavit or indictment should state that an offense was committed within the demanding State. Matter of Heyward, 1 Sandf. 701; Ex parte Douaghey, 2 Pitts. 166; Ex parte Smith, 3 McLean, 121. It must also appear by affidavit that the alleged fugitive has filed from the demanding State. Matter of Heyward (supra); Ex parte Smith (supra); Hartman v. Aveline, 63 Ind. 344. The court on habeas corpus has the right to determine whether the party demanded is in fact a fugitive from justice, and the decision of the executive on this point is not binding on the judiciary. Jones v. Leonard, 50 Iowa, 106; S. C., 32 Am. Rep. 116. In this case the court held that "a citizen and resident of one State charged in a requisition with constructive commission of crime in another State from which in fact he has never fled is not a fugitive from justice, and the determination of the governor as to the sufficiency of the facts alleged is not conclusive."

Of course where on habeas corpus all the papers on which the warrant is founded are produced, the court has the right and is bound to pass upon their sufficiency to justify the granting of the warrant. People v. Donohue, 84 N. Y. 438; People v. Brady, 56 N. Y. 182. But cases may arise in which the executive may refuse to submit such papers to the court. That the production of such papers on the hearing cannot be compelled appears to be well settled by the authorities. State v. Burgine, 4 Har. (Del.) 572; Leary's case, 6 Abb. N. C. 43; In re Leary, 10 Benedict 197. In the event of the papers being withheld, must the warrant recite all the necessary facts? That it should cannot be seriously questioned. In re Jackson, 2 Flip. C. C. 183; In re Doo Moon, 18 Fed. Rep. 898; Ex parte Thornton, 9 Tex. 635; People v. Donohue, 84 N. Y. 438. Where the warrant does recite all the essential facts, can