guilty.' The turnkey of the jail, the sheriff of Clay, and the sheriff of the adjoining county concur in stating that there was great and imminent danger of mob violence; one of the jurors says that there was intense excitement among the large crowd of people present at the trial; that he was himself stationed at the door of the court-house to signal to the jail any movement of the mob; that the judge was greatly excited and said in the evening, that he 'had not drawn an easy breath until he had seen the train in motion with Sanders aboard.' There was much other evidence as to the presence of a large number of angry and excited men, and it is also shown that they uttered threats of violence and appeared determined to seize and hang the appellant unless punishment was at once imposed upon him." In granting the new trial the court said: "Duress not only avoids all acts, but it also relieves from responsibility for crime. Necessity justifies many things as against an accused; it justifies the discharge of a jury, although the trial has been duly entered on, because of the illness of a judge or juror; it dispenses with essential averments in indictments.2 In Commonwealth v. Jailer, etc.,3 a prisoner applied for a discharge under the provisions of a statute which entitled an accused to a trial or a discharge at the second term of the court after his arrest. He had been afflicted with small-pox, and was recovering, but, as the report says, 'his aspect was so loathsome as to spread a general panic.' The application for a discharge was refused, the court saying: 'There is no doubt that necessity, either moral or physical, may raise an invariable exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was not intended to be required of it.' If, as against an accused, the Government may invoke the doctrine of necessity and compulsion, may it not be invoked by him for the purpose of relieving himself from a plea wrung from him by fear of immediate and violent death? The assistance asked does not go to the extent of discharging without a trial, but the appeal is for relief from a plea of confession and for the award of an opportunity for trial. The application of the appellant brings to the knowledge of the court a fact which, if known, would have prevented a conviction; and all the cases agree that where a new fact is suggested which would have prevented judgment, the accused is entitled to the writ coram nobis. We can not conceive it possible-possible, we mean, in a legal sense, and under legal principles. that a court, with knowledge that a plea of guilty is forced from a prisoner by fear of death, would imprison him for life without a hearing or trial. Duress is a species of fraud. Mr. Bishop says: 'The common-law doctrine is familiar, that fraud vitiates every transaction into which it enters.' It is a principle of wide application, that a judgment obtained by fraud may be annulled. The fraud, however, must be as to some act in securing jurisdiction, or as to something done concerning the trial or the judicial proceedings themselves; the rule has no application to cases of fraud in the transaction, or matters connected with it, out of which the legal controversy arose. Bigelow thus states the rule: The fraud referred to must consist either in facts relating to the manner of obtaining jurisdiction 11 Archbold Cr. Pr. 52; 1 Hale P. C. 56; 1 East P. C. 70. 21 Bish. Cr. Pr. 493; Beecher v. State, 32 Ind. 480; Mixon v. State, 55 Ala. 129; 28 Am. Rep. 695 (1876). 3 7 Watts, 366. 1 Bish. Cr. L. 1008. in the cause, to the mode of conducting the trial, or to the concoction of the judgment, or in facts not actually or necessarily in issue at the former trial.'1 'Fraud,' said DeGrey, C. J., in Rex v. Duchess of Kingston,2 is an extrinsic collateral act; which vitiates the most solemn proceedings of courts of justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal.' There is, indeed, no diversity of opinion as to the effect of the fraud, for it is agreed on all sides, as stated by Mr. Freeman, in speaking of judgments, that 'upon proof of fraud or collusion in their procurement they may be vacated at any time.' While there is entire harmony upon this point, there is some diversity of opinion as to whether a judgment can be collaterally impeached for fraud.3 In his discussion of this subject Mr. Bishop says: In criminal cases there is no question, that, when fraud is practiced at the trial by the prosecutor, producing a conviction, a new trial will be granted on the prayer of the defendant.' As against the accused the rule goes much further, for it is held that if a judgment of acquittal is obtained through his fraud it is an absolute nullity.5 ་ "The case comes to us upon uncontradicted evidence that the plea of guilty was not the voluntary act of the accused, but was induced by fear of violence. There is no necessity, therefore, for another trial upon this issue of fact. The fact of the existence of unlawful and violent compulsion, which deprived the appellant of freedom of will and liberty of action is settled, and settled without contrariety of evidence or conflict of testimony, and upon that issue nothing remains for trial. With the undisputed facts before us, the only course open to us is to pronounce judgment of law upon the facts thus established. If the State had made an issue of fact, or offered opposing evidence, then another trial would have been necessary. It is no doubt true that the State may make an issue of fact by controverting the allegations in the motion of the accused, or by offering opposing evidence, and in the event that an issue of fact is joined or presented it is to be tried as other issues of facts are tried. Where, however, as here, the State offers no evidence, and makes no denial, and the evidence of the accused is uncontroverted, there is no necessity for a trial. We have decided the case upon the motion and evidence adduced in its support, and not upon the demurrer to the complaint. Judgment reversed, with instruction to vacate the judgment upon the indictment against the appellant; to permit him to withdraw the plea of guilty and plead to the indictment; to put him upon trial in due form of law upon the indictment preferred against him, and for further proceedings in accordance with this opinion." 1 Big. Fr. 179. 2 20 How. St. Tr. 355, 544. 3 Freem. on Judg., secs. 99, 132; Wiley v. Pavey, 61 Ind. 457. 41 Bish. Cr. L., sec. 1009. 1 Archb. on Cr. Pr. 352, cases cited in n. 1 Whart. Cr. L., sec. 546; 1 Bish. Cr. L., sec. 1010; 3 Whart. Cr. L., sec. 3222; Commonwealth v. Da ¿com, 111 Mass. 404; Common. wealth v. Alderman, 4 Mass. 477; Halloran v. State, 80 Ind. 586; Watkins v. State, 68 Ind. 427 (34 Am. Rep. 273). CHAPTER IX. ATTEMPTS. ATTEMPT-INTENT MUST EXIST AT TIME OF ACT. UNITED STATES v. Fox. [5 Otto, 670.] In the Supreme Court of the United States, 1877. The Criminal Intent Necessary to the commission of crime must exist at the time of the doing of the act; and can not subsequently be imputed to a previous act. Certificate of division from United States Circuit Court, Southern District of New York. Fox was indicted for obtaining goods under false pretenses within three months before he filed a petition in bankruptcy. He was convicted in the District Court, but in the Circuit Court, upon a motion in arrest of judgment, the judges were divided in opinion as to whether, if a person does a thing which at the time is no offense against the laws of the United States, he is liable to punishment for it by reason of subsequent proceedings in bankruptcy. Mr. Justice FIELD delivered the opinion of the court. The question presented by the certificate of division does not appear to us difficult of solution. Upon principle, an act which is not an offense at the time it is committed can not become such by any subsequent independent act of the party with which it has no connection. By the clause in question, the obtaining of goods on credit upon false pretenses is made an offense against the United States, upon the happening of a subsequent event not perhaps in the contemplation of the party, and which may be brought about against his will by the agency of another. The criminal intent essential to the commission of a public offense must exist when the act complained of is done; it can not be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to constitute an offense, one act being auxiliary to another in carrying out the criminal design. But the present is not a case of that kind. Here an act which may have no relation to proceedings in bankruptcy becomes criminal, according as such proceedings may or may not be subsequently taken, either by the party or by another. There is no doubt of the competency of Congress to provide, by suitable penalties, for the enforcement of all legislation necessary or proper to the execution of powers with which it is intrusted. And as it is authorized "to establish uniform laws on the subject of bankruptcies throughout the United States," it may embrace within its legislation whatever may be deemed important to a complete and effective bankrupt system. The object of such a system is to secure a ratable distribution of the bankrupt's estate among his creditors, when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts upon a surrender of his property. The distribution of the property is the principal object to be attained. The discharge of the debtor is merely incidental, and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate for the prevention of frauds in either of these particulars, when committed in contemplation of bankruptcy, would seem to be within the competency of Congress. Any act committed with a view of evading the legislation of Congress, passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offense against the United States. But an act committed within a State, whether for a good or a bad purpose, or whether with an honest or a criminal intent, can not be made an offense against the United States unless it have some relation to the execution of a power of Congress or to some matter within the jurisdiction of the United States. An act not having any such relation is one in respect to which the State can alone legislate. The act described in the ninth subdivision of section 5132, of the Revised Statutes, is one which concerns only the state in which it is committed; it does not concern the United States. It is quite possible that the framers of the statute intended it to apply only to acts committed in contemplation of bankruptcy; but it does not say so, and we can not supply qualifications which the Legislature has failed to express. Our answer to the questions certified must be in the negative, and it will be so returned to the Circuit Court. ATTEMPT-PREPARATIONS TO COMMIT CRIME NOT INDICTABLE. PEOPLE V. MURRAY. [14 Cal. 159.] In the Supreme Court of California, October Term, 1859. 1. An Attempt to be Indictable must be manifested by acts which would end in the consummation of the particular offense, but for the intervention of circumstances, indedent of the will of the party. 2. Case in Judgment—Preparations to Commit Crime.-M. was indicted for attempting to contract an incestuous marriage. It was shown that he had declared his intention of marrying his niece, had eloped with her, and had sent for a magistrate to perform the ceremony. Held, that these were preparations and did not constitute an attempt. APPEAL from the Court of Sessions, Trinity County. Indictment for an attempt to contract an incestuous marriage. Defendant was tried, convicted, and sentenced to the State prison for one year. He appeals. J. Neely Johnson, for the appellant. FIELD, C. J., delivered the opinion of the court, COPE, J., and BALDWIN, J., concurring. The evidence in this case entirely fails to sustain the charge against the defendant of an attempt to contract an incestuous marriage with his niece. It only discloses declarations of his determination to contract the marriage, his elopement with the niece for that avowed purpose, and his request to one of the witnesses to go for a magistrate to perform the ceremony. It shows very clearly the intention of the defendant, but something more than mere intention is necessary to constitute the offence charged. Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement toward the commission after the preparations are made. To illustrate: a party may purchase and load a gun, with the declared intention to shoot his neighbor; but until some movement is made to use the weapon upon the person of his intended victim, there is only preparation, and not an attempt. For the preparation, he may be held to keep the peace; but he is not chargeable with any attempt to kill. So in the present case, the declarations, and elopement, and request for a magistrate, were preparatory to the marriage; but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of mar |