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eral terms to be so limited as not to include the specific stated by an American court to be, that, “when a generic term employed in a statute is succeeded by one more definite in its meaning, it is necessary in an indictment predicated upon such statute that the latter term should be used," 1 has been applied to the provision now under consideration. So that a highway, being specifically mentioned, is not included in the more general term of public place. The same result, let us observe, might seem also to follow from the use of the word “ other." But a neighborhood road, not being a highway, may, under the other requisite circumstances, be a public place. In considering whether a particular locality is a public place or not, the courts look at it in respect to the manner in which it was used at the time of the alleged offence. Thus, if a village storehouse to which people resort for the purchase of goods, or a shop in which medicines are sold, is locked up at night, it then ceases to be a public place within the statute, though it was such during the day. And the general principle seems to be, that the place must be one to which people are at the time privileged to resort, without au invitation. There must also be a publicity about it; for persons concealed gaming in bushes and briars, though on land owned by the county for supporting its poor, are not in a public place. On the other hand, any place may be made
The State v. Plunket, 2 Stew. 11. This rule would seem to have been latterly discarded in England. Reg. v. McCulley, 2 Moody, 34, 2 Lewin, 272. And see post, $ 204.
* Bush v. The State, 18 Ala. 415, S. P.; Windham v. The State, 26 Ala. 69; McCauley v. The State, 26 Ala. 135.
* Mills v. The State, 20 Ala. 86.
* Commonwealth v. Feazle, 8 Grat. 585; Clarke v. The State, 12 Ala. 492; Windsor v. Commonwealth, 4 Leigh, 680. And see Roquemore v. The State, 19 Ala. 528.
s Clarke v. The State, supra; Roquemore v. The State, supra; Burdine v. The State, 25 Ala. 60; Sherrod v. The State, 25 Ala. 78.
* Commonwealth v. Vandine, 6 Grat. 689; Bythwood v. The State, 20 Ala. 47. See also Smith v. The State, 23 Ala. 39.
public by a temporary assemblage;1 and the exclusion of a few persons is not alone sufficient to prevent its being such? Moreover “we must look at the character of the place, the manner of ingress to it, and the number of persons that assemble there." 3 A steamboat, for example, is a public place.
$ 182. Plantation. This word, occurring in the statutes of some of the States, has been defined to mean, as in common parlance, “any body of land consisting of one or several adjoining tracts, on which is a planting establishment.” 5
§ 183. Bridge. Precisely how far the legal character of a bridge requires that water flow under it, may not be entirely clear; but the water need not flow during all seasons of the year. Especially if there is one structure having several arches, the whole structure may be deemed in law a bridge, though under some of the arches the water passes only at flood times, In New Jersey the court held, that the word bridge, as used in a statute of the State, includes not only the erection across the stream, but its abutments also; so finished that travellers may safely pass thereon.?
§ 184. River. A river is a stream of flowing water, of
Campbell v. The State, 17 Ala. 369. See Taylor v. The State, 22 Ala. 15.
Campbell v. The State, supra. * Coleman v. The State, 20 Ala. 51.
* Coleman v. The State, 13 Ala. 602. For further illustrations of what is a public place, see Farmer v. Commonwealth, 8 Leigh, 741; Walker v. Commonwealth, 2 Va. Cas. 515; Flake v. The State, 19 Ala. 551 ; Shihagan v. The State, 9 Texas, 430.
The State v. Blythe, 3 McCord, 363. See also Sanderlin v. The State, 2 Humph. 315.
• Reg. v. Derbyshire, 2 Q. B. 745, 2 Gale & D. 97, 6 Jur. 438, and the authorities there cited. See Rex v. Osfordshire, 1 B. & Ad. 289. ? Sussex v. Strader, 3 Harrison, 108.
greater magnitude than a rivulet or brook. It may be navi- . gable or not; the public may have rights over it, or it may be purely private property; may arise from streams, or constitute the outlet of a lake; bear the appellation of river, or be known by some other word, — these particulars not being material to its legal character as a river.1
III. The Thing Done.
$ 185. Utter-Uttering. These words occur frequently in the law of forgery, counterfeiting, and the like; meaning, substantially, to offer. If one offers another a thing; as, for instance, a forged instrument or a piece of counterfeit coin, intending it shall be received as good; he utters it, whether the thing offered is accepted or not. It is said, that the offer need not go as far as a tender. But, to constitute an utter. ing, there must be a complete attempt to do the particular act the law forbids ;8 though there may be a complete conditional uttering, as well as any other, which will be criminal.4 In an English case the majority of the judges held, that,
1 Webster Dict. River; Bouv. Law Dict. River; The State v. Gilmanton, 14 N. H. 467. As to what is a “navigable stream,” see Munson v. Hungerford, 6 Barb. 265.
* Reg. 1. Welch, 2 Den. C. C. 78, 1 Eng. L. & Eq. 588, 1 Temp. & M. 409, 15 Jur. 136; Rex v. Arscott, 6 C. & P. 408; Reg. v. Ion, 2 Den. C. C. 475, 14 Eng. L. & Eq. 556; Reg. v. Radford, 1 Car. & K. 707; Rex v. Martin, 1 Moody, 483, 7 Car. & P. 549; United States v. Mitehell, Bald. 366 ; Reg. 9. Radford, 1 Den. C. C. 59; People v. Brigham, 2 Mich. 550.
Said Tilgham, C. J., in Commonwealth v. Searle, 2 Binn. 332, 339, “ To utter and publish is to declare or assert, directly or indirectly, by words or actions, that a note is good. To offer in payment would be an uttering or publish
a ing; but it is not passed until it is received by the person to whom it is offered.” See, however, Rex v. Shukard, Russ. & Ry. 200.
• See and compare Reg. v. Loughran, 3 Crawf. & Dix C. C. 333 ; Rex v. Collicott, Russ. & Ry. 212, 4 Taunt: 300; Reg. v. Heywood, 2 Car. & K. 352; The State v. Beeler, 1 Brev. 482. * Reg. v. Cooke, 8 Car. & P. 582; Rex v. Birkett, Russ. & Ry. 86.
where a man gave his servant forged stamps to be delivered to another person in another county (the fact being, that the servant was himself innocent in the matter), the offence of utter: ing the stamps might be deemed to have been done at the place where the servant took them. This point is doubtful on principle; because the master did not mean the servant should receive as for himself the stamps, and so they were no more put off to him than if he had been an inanimate object owned by the master. At the same time, there seems to be ground for considering the act of delivering the forged stamps to the servant as an indictable attempt to cheat the other person; though hardly amounting to an uttering.
§ 186. Put off. The words “pay or put off,” in a statute,
“ are not satisfied by a mere uttering, or by a tender; there must be an acceptance also. Therefore, where counterfeit coin had been .bargained away and counted out, but the transfer was not complete when the guilty person was arrested, the court held, that it had not been put off.2
$ 187. Passing "Passing” a paper is putting it off in payment or exchange. There must be a receiving of it, by the person to whom it is passed. If there is, at the same time, an agreement to take back the thing passed, on its prov: ing not to be good, still the passing is complete. But a mere pledge of the thing has been held, by the majority of the Tennessee judges, not to be a passing. Perhaps this last. point may be doubtful on principle.
$ 187 a.
Show forth in Evidence. These words in a stat
1 Rex v. Collicott, Russ. & Ry. 212, 4 Taunt. 300.
· Rex v. Wooldridge, 1 Leach, 4th ed. 307, 1 East P. C. 179. And see Rex v. Giles, 1 Moody, 166; Rex v. Palmer, Russ. & Ry. 72, 1 New Rep. 96, 2 Leach, 4th ed. 978. 3 United States v. Mitchell, Bald. 366,
Ante, $ 185, note. 5 Perdue v. The State, 2 Humph. 494. Gentry v. The State, 3 Yerg. 451.
ute refer to a judicial proceeding, in which the thing shown forth in evidence is offered; and they are not, therefore, equiv. alent to the words utter and publish.
$ $ 188. Burn — Burning. The word burn enters into the definition of arson ,at common law; and it occurs in many statutes. It means to consume by fire. If the wood is blackened, but no fibres are wasted, there is no burning; yet the wood need not be in a blaze. And the burning of any part, however small, completes the offence, the same as of the whole. Thus if the floor of a house is charred in a single place, so as to destroy any of the fibres of the wood, this is a sufficient burning in a case of arson.4
$ 189. Set fire to. These words have not been minutely defined, but they mean substantially the same as burn. There need not be a flame visible, yet there must be some consumption of the wood.
$ 190: Break — Breaking. We speak of breaking and entering a dwelling-house, being a part of the definition of burglary at common law; of an officer's having no right to break into a man's castle to serve process on him ;8 and the word
1 The State.v. Britt, 3 Dev. 122; The State v. Stanton, 1 Ired. 424. As to karing in possession, see Commonwealth v. Whitmarsh, 4 Pick. 233; Commonwealth v. Morse, 2 Mass. 128 ; Rex v. Rowley, Russ. & Ry. 110.
• Reg. v. Russell, Car. & M. 541; Reg. v. Parker, 9 Car. & P. 45; Rex v. Stallion, 1 Moody, 398.
Commonwealth v. Van Shaack, 16 Mass. 105; The State v. Mitchell, Ired. 350.
* Reg. v. Parker, supra; The State v. Sandy, 3 Ired. 570; Commonwealth v. Betton, 5 Cush. 427; People v. Cotteral, 18 Johns. 115; People v. Butler, 16 Johns. 203.
5 2 East P. C. 1020; Commonwealth v. Van Shaack, 16 Mass. 105. It has been held, that the words “set fire to” are not a legal equivalent for · “burn," in an indictment. Howel v. Commonwealth, 5 Grat. 664.
. Rex v. Stallion, 1 Moody, 398.