Act of March 1, 1839, Ses. Acts, ch. 74, p. 46.

ried, or who shall hereafter marry, do go without the limits of the commonwealth, and there marry any person or persons, the former husband or wife being alive at the time of such subsequent marriage, and do thereafter come within the limits of this commonwealth, every such offence shall be felony; and the person or persons so offending, being thereof convicted, shall undergo confinement in the public jail and penitentiary for a term not less than two, nor more than ten years; and the proceedings, trial and judgment shall be in that county in which he, she or they may be found or apprehended, and the courts thereof, shall have the same jurisdiction of the offence, as if the subsequent marriage had taken place within the limits of such county or corporation: Provided, That nothing herein contained shall extend to any marriage which would not have been felonious, if the same had taken place within this commonwealth.

Act of February 6, 1819-January 1, 1820. R. C. ch. 159.

13. § 1. If any do commit the detestable and abominable vice of buggery(f) with man or beast, he or she, so offending, if he or she be a free person, shall be adjudged a felon, and shall be sentenced to undergo a confinement in the public jail and penitentiary-house, for a period not less than one,(5) nor more than ten years, If the person so offending be a slave, he or she shall be adjudged a felon, and shall suffer death without the benefit of clergy. 1792, c. 100; and 1799, c. 264, R. C.; 25 Hen. 8, c. 6; 5 Eliz. c. 17.

Arson

burning

Act of February 6, 1819-January 1, 1820. R. C. ch. 160.

14. § 1. If any person shall commit arson,(g) being thereof lawfully convicted, such person shall be deemed guilty of felony, and shall suffer death, without benefit of clergy. If any free person shall be accessary thereto, he shall suffer a confinement in the penitentiary, not less than ten, nor more than twenty-one years; and, if any such accessary be a slave, he shall be adjudged a felon, and suffer death without benefit of clergy. Jan. 1805, c. 55, 1803, c. 41, ed. 1808; 1792, c. 130, R. C.

15. § 2. All and every person and persons, who shall, at any time, either main the night or the day, maliciously, unlawfully and willingly, burn or set In fire to any house or houses whatsoever, in a town, or shall aid, abet, assist, counsel, hire or command, any person or persons to commit any of the said offences, being thereof lawfully convicted, and either of the said offences shall actually have been committed, shall be deemed guilty of felony, and shall suffer death as a felon, "without benefit of clergy." Jan. 1805, c. 55, ed. 1808.

16. § 3. Every free person or persons, who shall, at any time, either in the Burning night or the day, maliciously, unlawfully and willingly, burn or set fire to any un barn, stable, corn house, tobacco house, stack of wheat, barley, oats, corn or other grain, or any stack of fodder, straw or hay; or shall aid, abet, assist, counsel, hire or command, any person or persons to commit any of the said offences, being thereof lawfully convicted, and either of the said offences shall actually have been committed, shall be deemed guilty of felony, and shall be sentenced to undergo a confinement in the jail or [and] penitentiary-house, for any time not less than two, nor more than five years, and shall, moreover, pay the full value of the property burnt or destroyed, to the owner or owners thereof. May 1730, c. 4, 4 Stat. Larg. 271. Ibid.

grain

(f) See The Com. v. Thomas, Virg. Cas. 307, and (note.)

(5) See post. same tit. No. 67, note (2).

(g) See The People v. Butler, 16 Johns. R. 203; 4 City Hall Rec. 77, S. C.; Com. v. Van Schaack, 16 Mass. R. 105.

Act of February 6, 1819-January 1, 1820. R. C. ch. 160.

17. § 4. All and every free person and persons, that shall, at any time, either in the night or the day, maliciously, unlawfully and willingly, burn any house or houses whatsoever,(1) other than those enumerated in the three first sections of this act, or shall comfort, aid, abet, assist, counsel, hire or command, any person or persons to commit any of the said offences, being thereof convicted or attainted, and either of the said offences shall actually have been committed, shall be adjudged guilty of felony, and shall undergo a confinement in the public jail and penitentiary-house, for a period not less than one,(5) nor more than ten years. 1792, c. 109; 1799, c. 264, R. C.

18. § 5. If any slave or slaves, at any time, shall wilfully and maliciously burn or set fire to any barn, stable, corn house, or other house, or shall advise, counsel, aid, abet or assist any slave or slaves, free negro or mulatto, or any other person or persons to commit either of the said offences, and either of the said offences shall actually be committed,' such slave or slaves being thereof lawfully convicted, he, she or they shall be deemed guilty of felony, and shall suffer death, without benefit of clergy.(9) Feb. 10, 1808, c. 132, ed. 1808.

19. § 6. If any slave or slaves, shall wilfully and maliciously burn or set fire to any stack or cock of wheat, barley, oats, corn, or other grain, or to any stack or cock of hay, straw or fodder, or shall advise, counsel, aid, abet or assist any slave or slaves, free negro or mulatto, or any other person or persons to commit either of the said offences, and either of the said offences shall actually be committed,' such slave or slaves being thereof lawfully convicted, he, she or they shall be deemed guilty of felony, and shall be punished as felons, within the benefit of clergy.(8) Ibid.

Act of January 16, 1802, ch. 253, 2 R. C. 313.

191. § 2. If any person or persons shall set the woods(10) on fire, unless by accident, or in any manner be concerned therein, every such person shall pay a fine of thirty dollars for every such offence, to be recovered in any court of record within this commonwealth, by any person who will sue for the same, one half thereof to the use of the informer, and the other to the use of the county wherein the offence was committed, to be applied towards lessening the levy; and, if any such person be an infant under the years of eighteen, the said fine may be recovered in like manner of his parent, guardian or master; and if any such person be a free negro or mulatto, and unable to pay the said fine, he shall receive thirty lashes by order of any justice of the peace. This act shall not extend to the counties of Nansemond, Southampton and Isle of Wight.

(1) Indictment for arson describing the house burned as "the county jail and prison of the county of Hanover being the house of L. Jones, sheriff and jailor of the said county:" Held, the burning of such jail is felony within this section; and whether the jail may be properly laid to be the house of the sheriff and jailor or not, that part of the description is unnecessary, and may be rejected as surplusage. Stevens's case, 4 Leigh, 683.

(5) See post. same tit. No. 67, note (2). (9) By the second § of act of Feb. 12, 1829, Sup. R. C. c. 185, p. 244, it is prescribed that every slave convicted of either of these offences, if the injury done by the offence shall not exceed the value of fifty dollars shall be entitled to the benefit of clergy.

(8) See act of Feb'y 12, 1829, ch. 22, § 1, Sup. R. C. c. 185, § 1, p. 244, by which it is provided, that if any slave shall be guilty of either of these offences and injury shall have been sustained by any person to the value of fifty dollars, such slave being convicted shall be deprived of the benefit of clergy.

(10) Indictment for unlawfully, wilfully and maliciously setting fire to the woods near the plantation of A. M. and burning said woods and a fence belonging to said A. M. is described, in the record of the finding, as an indictment "for setting fire to the woods and burning the same:' Held, a sufficient record of the finding. Earhart v. Com. 9 Leigh, 671.

Act of March 6, 1835, Ses. Acts, ch. 65, p. 46.

192. § 1. Every free person, who shall, at any time, either in the night or the day, unlawfully, wilfully and maliciously burn, or set fire to, any woods, fence, field of grass, field of straw, field of hay, or any other such thing capable of taking and spreading fire on lands, or shall aid and abet, assist, counsel, hire or command any person or persons to commit any of the said offences, and either of them shall actually be committed, being thereof lawfully convicted, shall be deemed guilty of a misdemeanour, shall be fined not exceeding one hundred dollars, and sentenced to imprisonment, in the common jail of the county, for a term not less than two nor more than twelve months; every such person shall moreover be liable to the action of the party injured by such offence, in which action full costs and damages shall be recovered. If any slave shall commit any of the said offences, and be thereof lawfully convicted, he shall be deemed guilty of felony, but shall have the benefit of clergy.

193. § 2. Every free person who shall unlawfully and negligently, though not wilfully and maliciously, burn or set fire to any woods, fence, field of grass, of straw or of hay, or any other like thing capable of taking and spreading fire on lands, and shall thereby do injury to another, or shall willingly or by gross negligence, suffer fire to escape from his own lands or otherwise, and to do injury to another, shall be liable to the action of the party aggrieved for all the damages he may sustain, and for full costs. If any slave shall commit any of the said offences, he shall be punished at the discretion of a justice of the peace, by stripes not exceeding thirty-nine.

Act of March 8, 1827, Ses. Acts 1826-7, ch. 30, p. 27. Sup. R. C. ch. 227, § 1, p. 281.

19. § 1. If any person or persons shall wilfully and maliciously burn or set fire to any bridge of the value of one hundred dollars, built by authority of this commonwealth, or of any corporation, county or counties, or of any act of assembly, every such person, his, her and their aiders and abettors, shall be deemed guilty of felony; and if he, she or they be a free person or persons, shall suffer imprisonment in the public jail or penitentiary, for a term not less than two, nor more than ten years; and if a slave or slaves shall suffer death without the benefit of clergy.

Act of February 9, 1819-January 1, 1820. R. C. ch. 156.

20. § 1. Whosoever shall unlawfully cut off the tongue, or disable the tongue by clipping, biting or wounding,(3) put out an eye, slit, cut off, or bite off the nose, ear or lip, or disable(i) or disfigure the nose, ear or lip, by cutting or biting,' or cut off, or disable(i) by cutting, biting or wounding(3) any

6

(3) See 9 Geo. 4 c. 31, § 12, and Wood & M'Mahon's case, 1 Ry. & Moo. Cr. Cas. Res. 278; Withar's case, Ibid. 294; Brigg's case, Ibid. 318. To constitute a wound within the meaning of this act, the continuity of the skin must be broken.

(i) The indictment, (to bring the case within this act,) must charge, that the party was disabled. The Com. v. Lester, gen. ct. June T. 1820, 2 Virg. Cas. 198. And, the jury must be satisfied that the disability is of a permanent character; that the member is incapable of again performing its ordinary functions. Grimstead's case, cited(h).

An indictment charging that J. L. feloniously did break the jaw-bone of R. S. with intent to maim, disfigure, disable, or kill; and concluding against the form of the

act &c. is not a good ind't under the act, because it does not aver that J. L. did disable any limb or member, but only that he did break a bone with intent to disable. And, tho' J. L. was charged with feloniously breaking the jaw-bone of R. S. contra formam statuti, the indictment cannot be sustained as one for maim, at common law, because a maim at common law, with one exception only, is not a felony.

If an indictment charge that one feloniously did strike, cut and stab another, with intent to kill &c. though the words strike and cut are not in the act, yet the indictment ought not to be quashed, "because of the commixture of felony and misdemeanour" contained therein. Those words may be rejected as surplusage. Derieux v. Com. 2 Vir. Cas. 379.

22

CRIMES AND PUNISHMENTS.

Act of February 9, 1819-January 1, 1820. R. C. ch. 156.

limb or member(h) of another,(1) or shoot or stab(2) another, with intention
in committing any of the said acts to maim, disfigure, disable or kill,(j) every
such offender being free,'(k) his or her counsellors, aiders and abettors being
free, are hereby declared to be felons, and' shall be punished with confinement
in the jail and penitentiary for a term not less than one, nor more than seven
and be liable to the action of the party grieved.' Feb. 20-Mar. 1,
years,
1817, c. 15; and see Feb'y 1752, c. 16, 6 Stat. Larg. 250; Dec. 1792, c. 99, R.
C. ed. 1803; Dec. 1796, c. 200, § 10; Jan'y 1803, c. 16, R. C. ed. 1808, § 2, p.

(h) The head, is a member, within this
law. The Com. v. Grimstead, sup. ct. Hen-
rico, March T. 1820.

(1) See The Com. v. Chapple, 1 Virg. Cas.
184, in which it was held that the stabbing
a slave, is within the act of Jan. 28, 1803,
although three fourths of the fines is there-
by given to the party grieved, who is also
made a competent witness; the expression
of the act being general, "any persons," and
slaves being persons on whom wrongs may
be inflicted. The court being of opinion,
that the incapacity of a slave to take any
part of the fine, ought not to screen the of
fender, and that the other clause of said act,
did not make competent any witness, who
was incompetent from any other cause than
his interest in the fine.

A negro slave, is a person on whom a
free person may commit the offence of mali-
cious or unlawful shooting, stabbing &c.
The Com'th v. Car-
under this act of 1819.
ver, 5 Rand. 660.

(2) In the case of Derieux, (2 Virg. Cas.
379,) it was held that tho' the indictment
charged that D. "did strike and cut" and
stab, the words strike and cut should be re-
jected, the word stab being sufficient to
bring the case within the stat. It seems,
therefore, that if the word stab had not been
in the indictment, it would have been quash-
ed, the offence of striking and cutting being
only a misdemeanour at common law. In
M'Dermott's case, under the act of 43 Geo.
3, ch. 58, he was indicted for that he did
&c. strike and cut J. S. with intent &c.-
proof, wounds inflicted by stabbing, and
not by cutting-judg't for prisoner. Stab-
bing being a wounding with a pointed in-
strument, and cutting being a wounding
with an instrument having a sharp edge.
Rus. & Ryan's Cro. C. 356.

An indictment charging that prisoner,
"at the county, and within the jurisdiction
of the court, feloniously and maliciously
did stab one P. T. with intention to maim
&c. and kill him," will not be quashed, up-
on objection that it does not allege any as-
sault, striking or wounding, nor that P. T.
was within the county or jurisdiction, nor
that the intent was felonious or malicious.
Com. v. Woodson, 9 Leigh, 669.

(j) An indictment for unlawfully shooting A. T. "with the intention to maim, disfigure, disable and kill" is good, though the 28

·

act of assembly is in the disjunctive; the
most approved authorities and precedents
sanction the conjunctive form. It is not ne-
cessary that every intent should be separate-
ly counted on. And, though the intention
be laid in the conjunctive, it is not necessary
to prove all the intentions; it is sufficient
to prove so much of the indictment, as
shews that the prisoner committed a sub-
stantive offence charged on him: An un-
lawful shooting, with either intent, is a sub-
stantive offence, under this act; and, there-
fore, though the jury in this case, negatived
the intent to kill, their verdict, finding the
prisoner guilty of the unlawful shooting

with intention to maim, disfigure and dis-
able," was supported. The Com. v. Angel,
gen'l court, Nov. T. 1820, 2 Virg. Čas.
231; see Starkie on Crim. Plead. 2 vol
These words "being free" do not en-
558; Chitty's Crim. Law, 3 vol. [784, 790.]
ter into the offence, or constitute any part
of it. They are introduced, merely to shew
the court, in which the offender is to be
tried, and the mode of punishment. There-
fore, an indictment charging P. Y. with
having violated this act, without setting
forth in any way, that the prisoner was free,
was sanctioned. White, J. in delivering the
court's op. said, that several authorities had
been introduced to shew, that, where any
description of this kind is contained in the
enacting clause, which creates an offence,
it is error to omit that description. But,
that this doctrine applied only to those cases
where the description enters into, and makes
a part of the crime, or is necessary to com-
plete it. As, in the offence against a late
act of assembly, [see post. No. 48,] making
it felony for certain officers embezzling cer-
tain monies &c. in which, the office is of the
very essence of the crime, and without
which, the offence would remain as at com-
mon law, a mere breach of trust. There
But in
fore, an indictment under that act, must
shew, that the accused held an office which
would bring him within the act.
this case, the word omitted does not enter
into, or constitute any part of, the offence;
for whether the party be bond or free, it is
equally a felony. That these principles had
been settled in a former term, in the case of
Bennett v. The Com. 2 Virg. Cas. 235;
Young v. The Com. gen'l ct. June T. 1823.

(an The statute of 2003 ch.58. makes it felony an deaths) (o shoot at puason with isclent to mar. der Md Archbold's Crim. plead. Assault p24 Matt Chatty Crim Lane 3 Vol. 988 (220)

Act of February 9, 1819-January 1, 1820. R. C. ch. 156.

15; 22 and 23 Car. 2, c. 1; 9 Geo. 1, c. 22; 43 Geo. 3, c. 58.
No. 23, and No. 67, and note.

See post.

21. 2. Whosoever shall voluntarily, maliciously,(7) and of purpose commit any of the aforesaid acts, with intention in so doing, to maim, disfigure, disable or kill; every such offender 'being free, and' his or her aiders, counsellors and abettors, being free, are hereby declared to be felons, and' shall be punished with confinement in the penitentiary, for a time not less than two, nor more than ten years; and shall moreover pay a fine not exceeding one thousand dollars, and be liable to the action of the party grieved, as in case of trespass; and the party grieved shall be a competent witness to prove any of the said offences, in any criminal prosecution for any such offence. 4, c. 31, § 11, 12. Ibid. See post. No. 23.

See 9 Geo.

22. § 3. If any slave shall commit any of the offences in this act mentioned, every such offender, his or her counsellors, aiders and abettors, knowing of and privy to the offence, shall be, and are hereby declared to be felons, and shall suffer as in case of felony. Rev. 1819.

Act of February 21-May 1, 1823, ch. 33.

23. § 1. If any slave, free negro or mulatto, shall hereafter, wilfully and maliciously, assault and beat a white person, with an intention, in so doing, to kill such white person; every such slave, free negro or mulatto, so offending, and being thereof lawfully convicted, shall be adjudged and deemed guilty of felony, ["and shall suffer death without benefit of clergy." Act of March 15-1 July 1832, c. 22, § 6, Ses. Acts, p. 21.] See post. tit. SLAVES, FREE NEGROES, &c. No. 22.

Act of March 6, 1819-January 1, 1820. R. C. ch. 171.

24. § 5. Every person convicted of robbery(11) or burglary, (12) or as accessary thereto before the fact, shall restore the thing robbed or taken, to the owner or owners thereof, or shall pay to him, her or them, the full value thereof, and be sentenced to undergo a confinement in the public jail and peniten

(1) See The King v. Gastineaux, 1 Leach. Cas. 417, 4 ed.

In an indictment for maliciously and vo-
luntarily shooting, the term wilfully being
used for voluntarily, is cured by stat. Jeo-
fails. An indictment for malicious shoot-
ing, ought to charge that it was done felo-
niously; and this under the act of 1817,
which does not in terms declare it felony,
but makes it punishable by confinement in
the penitentiary. Gen'l ct. November T.
1818, 2 Virg. Cas. 143; Trimble v. Com.

(11)" "With feloniously assaulting him the
said
in said city, and within the ju-
risdiction of the hustings court thereof,
on the day of
; and then and
there putting him in fear, and then and
there taking from him the said the
property of him, the said
of the value
of

." 4 C. C. L. 91.
If any thing be taken by violence, how-
ever insignificant its value, 'tis robbery, the
value in such case being immaterial. Rex
Bingley & Law, (1833,) 5 Car. & Payne,

V.

602,

With having feloniously and urge

riously, in the night of

now last past, the dwelling house of him, the said in said city, and within the jurisdiction of the hustings court thereof, open, and

broken of the

of the value of goods and chattels of him the said feloniously and burglariously stolen, taken and carried away from thence." See 7 and 8 Geo. IV. c. 29, § 11, § 13.

An indictment, charging that goods were feloniously and burglariously taken from a dwelling house, without charging that this was done in the night time, is not a good indictment for burglary, 'tis an indictment only for larceny. Comth. v. Marks, 4 Leigh, 658.

A house, the joint property of partners in trade, and in which their business is carried on, but in which only one resides, may be described as the dwelling house of all the partners. Rex v. Athea, Moo. C. C. R. 329.

What a breaking. See Rex v. Smith, 1 Ry. & Moo. C. C. R. 178; Rex v. Robinson, 1 Ry. & Moo C. C. R. 327; Rex v. Russell, 1 Ry. & Moo. C. C. R. 377; Rex v. Hyams, 7 Car. & P. 441.