TITLE I. GENERAL PROVISIONS. Art. 1. These definitions are intended to show the sense in which the words defined are employed in the system of Penal Law, not to denote or fix their general signification in the language. Art. 2. The words printed in small capitals in the body of this system, are alphabetically arranged in this Book, with the definition annexed. Art. 3. Generally the definitions that are incorporated in the other parts of the work are not repeated in this Book; but this rule is departed from when the general use of the term, in other parts of the System than that in which the definition is contained, renders a reference to the explanation necessary. Art. 4. Corollaries, illustrations, and developments, are used in several instances to fix the attention more strongly to particular parts of the definition: but the omission to employ them, in other cases, is not to be considered as giving any latitude for the construction of any word in a definition beyond the plain import of its meaning in connexion with the context. TITLE II. DEFINITIONS. ACCIDENT, in this System, means an event happening without the concurrence of the will of the person by whose agency it was caused. It differs from MISTAKE, because the latter always supposes the operation of the human will in producing the event, although that will is caused by erroneous impressions on the mind. See MISTAKE. ACT-when applied to a written instrument, is a term used to show the connexion between the instrument and the party who has given it validity by his signature or by his legal assent: when thus perfected, the instrument becomes the ACT of the parties who have signed or assented to it in a form required by law. ADVANTAGE, applied in different parts of the system to that which is to be gained or lost, means whatever, in the estimation of mankind, causes pleasure by its possession or enjoyment, or uneasiness by its loss or cessation. AFFIDAVIT-a written declaration, sanctioned by the oath of the declarant administered by a person or court duly authorized for that purpose. The administration of the oath must be duly certified by the official SIGNATURE of the person, or the clerk of the court, before whom it was taken; and the declaration must be SIGNED by the declarant; or it must be certified by the person administering the oath, that the declarant cannot sign. AFFINITY-a connexion formed by marriage which places the husband in the same degree of nominal propinquity to the relations of the wife as that in which she herself stands towards them, and gives to the wife the same reciprocal connexion with the relations of the husband. It is used in contradistinction to cosSANGUINITY, which is the relationship that exists between several persons who derive their descent in the same or different degrees of propinquity from an ancestor common to all. AFFIRMATION and OATH. An affirmation is a solemn declaration, made before a person or court authorized to receive it, attesting the truth of a statement already made or about to be made by the affirmant, or the truth or sincerity of a promise made by him. An oath is a similar declaration, accompanied by a religious invocation to the Supreme Being to bear witness to the truth of the declaration or the sincerity of the promise, and by a renunciation of the blessing of God and the respect of man if the engagement should be violated. Vide the Chapter of the Code of Procedure," Of Oaths and Affirmatiosn." The term "oath," whenever used in this System, as to its effects and consequences and all penalties attending its breach or falsity, includes affirmations, unless the contrary appears from the context. AMICABLE COMPOUNDER. An arbitrator with extensive equitable powers. TO APPROPRIATE, in relation to property, is to possess, and to make such use or disposition of it, as none but the owner, or some one legally authorized by him, could do; and, with respect to rights, to do such acts in relation to them as none but the person entitled to them, or his representatives, could lawfully do. Appropriations are legal or fraudulent. No appropriations are fraudulent but such as come within the definition of fraud in this book. Corollaries.-I. If the property he destroyed but not possessed, or if the possession be for the purpose of destruction, or be such a possession only, as is necessary for effecting the destruction, it is not an appropriation. II. If the property be taken possession of and transferred, although it be afterwards destroyed, it is an appropriation. ARBITRATOR-any one appointed by the parties in any litigated question, either of law or fact, to decide it between them. In this system it is used to include REFEREES, UMPIRES, and AMICABLE COMPOUNDERS, whether they are named by the court, in cases where they are authorized to do so, or by the parties. ATTEMPT. An attempt to commit an offence, in this system, means an endeavour to accomplish it, which has failed from some other cause than the voluntary relinquishment of the design. BAILABLE OF RIGHT. Those offences, on a charge for which the magistrate must admit to bail, if good security be offered, are bailable of right. The constitution provides, that bail must be taken for all offences, except those which were punished capitally at the time of its adoption: these were murder, rape, exciting insurrection among the slaves, and stabbing, or shooting, or poisoning with intent to murder. All other offences, therefore, are bailable of right. The offences, above enumerated, are also bailable, when the proof is not evident nor the presumption great. BREACH OF THE PEACE-any offence against public tranquillity, or against person or property, when accompanied by violence. BRIBE. The gift or promise which is accepted; of some ADVANTAGE, as the inducement for an illegal act or omission; or of some illegal EMOLUMENT, as a consideration, for preferring one person to another in the performance of a legal act. TO BRIBE to make such gift or promise which is received. received, it is an OFFER TO BRIBE. If it be not TO RECEIVE A BRIBE, is to accept the gift or promise, and either expressly or impliedly consent to do the act, or be guilty of the omission required. Whatever would be proof of consent in cases of contract, according to the rules of evidence, would show an acceptance in this case. Corollaries and Illustrations.-I. The gift or the promise required by the definition need not be direct: although the gift be clothed in the form of a sale for an inadequate price, or of the payment of a debt; or the promise be made colourably for some other consideration; or a wager, or any other device, be used to cover the true intent of the parties, it is a bribe. II. The gift or the promise must be the inducement for the act or omission; it must, therefore, precede or accompany such act or omission. If the act be first performed, uninfluenced by any such promise, it is not bribery. III. When the act or omission is illegal, the promise or gift of any ADVANTAGE, as the consideration, is bribery. If a magistrate should discharge, without bail, a person legally accused of a crime, on the promise of that person's influence with the governor for an appointment, this would be bribery; because, although the inducement, that is to say, the influence with the governor, is only an ADVANTAGE, not an EMOLUMENT, yet the act, that is to say, the discharge without bail, being illegal, it comes within the definition. IV. But when the act is legal, but the impropriety consists in the undue preference given to the person offering the inducement, that inducement, to constitute the offence, must not only be an advantage, but an emolument. If an officer of justice were to promise a magistrate to recommend his friend for an employment, as an inducement for the magistrate to employ him in preference to any other in the business of his office, this would not be bribery; although it would, if the inducement had been a sum of money or any other emolument. V. The emolument, when that is required to constitute the offence, must be illegal, that is to say, either not allowed or more than is allowed by law. If two persons should apply to a notary, each to have an act of sale drawn, and he should give the preference to the one who paid him double fees, this would come within the definition; but if he took no more than the tariff allows, the preference would be no offence. VI. No acts of bribery, or offer to bribe, are punishable as such, but those which are designated by express law. VII. Whenever by the Penal Code bribery, or an offer to bribe, is made punishable, in relation to officers of a particular description, or to persons exercising certain duties, powers, or privileges, it is intended to extend to all official acts and omissions of such officers, and to all acts or omissions of such other persons as relate to their duties, privileges, or powers; but not to include any other. BUILDING-any thing erected by art and fixed upon or in the soil, composed of different pieces, connected together, and designed for permanent use in the position in which it is so fixed. Corollaries.-I. A single piece of timber, although fixed in the ground, is not a building. II. A fence or enclosure is a building. III. A heap of stones, although some of them may be fixed on the earth, is not a building. IV. Every building comes under the description of real estate. COLOUR. Doing an act under colour of an office, or other legal power, means the doing it under the false pretence that it is authorized by the duties of such office, or by the due exercise of such legal powers. CONDITION of a Person-a situation in civil society which creates certain relations between the individual, to whom it is applied, and one or more others, from which mutual rights and obligations arise. Thus the situation arising from marriage gives rise to the CONDITIONS of husband and wife; that from paternity to the CONDITIONS of father and child. COROLLARY, in this system, is used not so much to designate the just consequence that, according to strict reasoning, ought to be drawn from any proposition, as the consequence which is established by law as resulting from the definition or proposition to which it refers. Those who are to execute or interpret the law, therefore, are forbidden to modify or reject any such consequence under the pretence that it is not a just deduction. CORPORATION, is an incorporeal being, created, and capable of acting only in the manner prescribed by law. It is composed of one or more persons having a common name and uninterrupted succession. It may hold property, and for certain purposes specified by law is considered as an individual. Corollaries.-I. As a corporation, by this definition, is capable of acting only in the manner prescribed by law, no act done in any other manner or form, can be the act of the corporation. It cannot, therefore, commit an offence. All such acts, although done under the colour of being corporate acts, are those of the individual members who perform them, and they alone are criminally liable. II. Acts which are offences against the property and rights of individuals, are also offences when committed against the property of corporations, and such rights as are vested in them by law. III. Corporations are of two kinds : Public, also called Political Corporations, and Private Corporations. PUBLIC CORPORATIONs are those to which are confided certain police powers in a designated portion of the state. PRIVATE CORPORATIONS are all such as are not public. CORRUPTLY. This adverb is applied to the doing of acts with the intent of gaining some ADVANTAGE inconsistent with official duty or the rights of others. Corollaries.-I. Corruption includes bribery, but is more comprehensive. An act may be corruptly done though the advantage to be derived from it be not offered by another. II. It is not corruption to do an official act from an expectation of ADVANTAGE, if the act be not contrary to official duty, or does not injure the rights of another. III. The corruption is not measured by the nature or amount of the ADVANTAGE. COUNTERFEIT-to make something false in the semblance of that which is true. Whenever this word is used, in this system, it implies fraudulent intent. COURT-COURT OF JUSTICE. These terms, in this system, are synonymous. A court is an incorporeal political being, which requires for its existence, the presence of the judge and clerk at the time during which, and at the place where, it is by law authorized to be held; and the performance of some public act, indicative of the design to perform the functions of a court. Corollaries.-I. There can be no court without a clerk or some one authorized to perform the duties of a clerk. II. Executive officers are not essential to the existence of a court. IV. The court cannot exist before the time at which, by law, it is authorized to hold its sessions; nor after the time to which its sitting is limited. V. All acts done by the persons composing the court, importing to be acts of the court, at any other place than that authorized by law, are not the acts of a court. VI. A justice of the peace, or any other magistrate authorized to perform judicial duties, without a clerk to record his proceedings, does not constitute a court; but courts may order certain executive acts to be performed at other times and places, such as the issuing of writs and filing of papers. CRIME, is an offence the punishment of which, in the whole or in part, may be the forfeiture of any civil or political right, or hard labour, or for which hard labour is an alternative, to be inflicted at the discretion of the court. DAY, given as the period of a notice, prescribed as a necessary interval between two acts or events, excludes the day of the notice and the day the act is to be performed; or of the first and second act or event; so that the full number of days prescribed shall intervene, unless there be a contrary provision in the law. DAY, used as a period of time, means the period of twenty-four hours, beginning at the expiration of the twelfth hour at night. DAY, or DAY-TIME, used in contradistinction to night, means the period beginning at half an hour before the rising of the sun, and ending half an hour after its setting. DEADLY WEAPON-any instrument which, when offensively used against the person, will probably produce death. DEMUR, is to admit the truth of a fact stated, but to deny the legal consequence for the establishment of which it was alleged. The only case in which a formal demurrer is admitted, in this system, is that of a demurrer to a challenge to the panel of jurors. DESIGNATED PERSON, is a term used to express one who is either known by name, or by person, or station, or office, or dwelling-place, or in any other way that may designate him to be the person referred to. DISCRETION-the exercise of sound judgment, directed by what may be sup posed would have been the will of the legislature, applied to the case in which the discretion is to be used, had the circumstances of that case been legislated upon for a development of this definition-See the Code of Procedure, chapter "Of the Judgment." DISCUSSION of Property, means the using the means prescribed by law for rendering it available to the payment of a debt. DOMESTIC ANIMALS, means only animals of that kind that are usually employed in hunting, or in husbandry, or which are raised for the purpose of food. EMOLUMENT-any thing that forms an increase of property. ESTATE, is used as synonymous with property. See PROPERTY. EVIDENCE, is that which brings the mind to a just conviction of the truth or falsehood of any substantive proposition which is asserted or denied. |