which might be issued. It is further ordered that this case be transferred to Tyler, for further action, at the ensuing term of the court to be held at that place In continuing the case, however, to Tyler, it is not deemed necessary to require the personal attendance of the defendant Sparks, upon the court at that place.

Ordered accordingly.

MASTER AND SERVANT — PRIVATE SOLDIER BOUND TO OBEY ORDERS OF SUPERIOR OFFICER.

RIGGS v. STATE.

[3 Cold. 85.]

In the Supreme Court of Tennessee, September, 1866.

An Order given by an Officer to a Private soldier which does not clearly show on its face its illegality, the soldier is bound to obey, and such order is a protection to him. And he has no right to inquire into the object or purpose of the order.

The plaintiff in error was convicted at the August term, 1866, of murder in the second degree and sentenced to fifteen years' imprisonment in the penitentiary, from which he appealed. Judge JAMES P. LEVAN presiding.

R. M. Barton and McFarland, for the plaintiff in error.

Trowbridge and Thos. H. Caldwell, Attorney-General, for the State. SHACKELFORD, J., delivered the opinion of the court.

The plaintiff in error was indicted in the Circuit Court of Jefferson County, for the killing of Captain Thornhill. A change of venue was had to the County of Granger. At August term, 1866, of the Circuit Court of Granger County, he was convicted by a jury, of murder in the second degree, and sentenced to fifteen years' imprisonment in the penitentiary.

A new trial was moved for, which was overruled, and an appeal taken to this court.

The court, among other things not excepted to, charged the jury in substance as follows: "A soldier in the service of the United States is bound to obey all lawful orders of his superior officers, or officers over him, and all he may do in obeying such lawful orders, constitutes no offense as to him. But an order illegal in itself, and not justified by the rules and usages of war, or in its substance being clearly illegal, so that a man of ordinary sense and understanding would know, as soon as he heard the order read again, that such order' was illegal, would afford a private no protection for a crime committed under such order, 1 DEFENCES.

17

provided the act with which he may be charged has all the ingredients in it which may be necessary to constitute the same a right in law. Any order given by an officer to his private, which does not expressly and clearly show on its face, or in the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. No person in the military service, has any right to commit a crime in law, contrary to the rules and usages of war, and outside of the purposes thereof; and the officers are all amenable for all crimes thus committed, and the privates likewise are answerable to the law for crimes committed in obeying all orders illegal on their face and in their substance, when such illegality appears at once to a common mind, on hearing them read or given." We think there is no error in this charge.

It is a well settled principle, a soldier is not bound to obey an illegal order. If he does, and commits an offense, it is no justification to him, and he is liable to be proceeded against and punished. This principle was settled in the Supreme Court of the United States, in the case of Mitchell v. Harmon,1 in which it was held a military officer can not rely on an apparently unlawful order of his superior, as a justification.

The same principle was recognized and settled in the Court of King's Bench.2 In this case a captain in the English navy, by orders of the British Admiral, pulled down the houses of some settlers on the coast. of Nova Scotia, who were supplying the sailors with spirituous liquors, and the health of the sailors was thereby much injured.

The motive was a laudable one and done for the public service. The courts say it was an invasion of the rights of private property without the authority of law, and the officer who executed the order was held liable. This being the rule in civil causes, the principle would be more stoutly applied in criminal ones. No order, if any was given, could justify the killing of Captain Thornhill, and the parties who did the act, are amenable to the criminal law. There being no error in the charge of the court, the question arises, do the facts in the record sustain the verdict of the jury? And under the rulings of this court, it is made our duty in criminal causes to examine the proof and see if it warrants the conviction.

The defendant was a private soldier in the Ninth Tennessee Cavalry, under the command of Colonel Parsons, and in Company D, commanded by Captain Bell. Upon his entering the service, he subscribed to the following oath, prescribed by the articles of war, adopted by the government for the army of the United States: "I do solemnly swear that I will true allegiance bear to the government of the United

1 13 How. 129

2 Reported in 1 Cowp. 180.

States of America, and I will serve them honestly and faithfully against all their enemies, or opposers whatsoever, and obey all the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles of war for the government of the United States." Under the rules and articles of war, the plaintiff in error was bound to obey the lawful orders of the superior officer; and on the day of June, 1865, he was detailed by Captain Bell, as one of a scout. On the morning of the detail, Captain Bell and Colonel Parsons had some conversation, the purport of which is not in proof. Shortly after, Bell went into the camp and detailed six men. The plaintiff in error was not present when the detail was made. One of the party detailed was unable to go, in consequence of his horse having lost a shoe. The plaintiff riding up at the time was ordered to fall into line, which he obeyed. They immediately left in the direction of Rogersville. When starting some one handed him letters for Kingston. During the day they met a battalion of the same regiment returning to camp, and a lieutenant and ten men were added to the scout. They were seen three or four miles from the residence of Richard Thornhill, the home of Captain Thornhill, by Richard Thornhill, going in the direction of Rogersville, the plaintiff in error riding a mule near the head of the column. Another witness saw the force within a mile and a half of Thornhill's; the plaintiff in error was with them. The force rode up to the house of Richard Thornhill, and asked if Captain Thornhill was at home. Several persons were sitting out on the piazza. Captain Thornhill went out to the fence. Some conversation ensued. One of the soldiers raised his hand, and the firing commenced. He ran, was pursued, and killed within about two hundred yards of the place where the firing commenced.

The principle of

The proof does not satisfy us the prisoner aided or abetted in the unlawful act of killing. A private soldier when detailed by his superior officer has no discretion. By the rules of war he is bound to obey the orders of those in command. When he enters the service, unconditional submission to the lawful orders of his superior officers is a duty imposed upon him by his oath and the articles of war. law, "when men are assembled for an illegal purpose, and the commission of an offense by any one of the party is the act of the whole," is not applicable to this case. The plaintiff in error being a private soldier, being detailed, was bound to obey the lawful order. The going to Richard Thornhill's, without a knowledge of the purpose for which the force was detailed was not an illegal act; he had no right to inquire of the officer the object and purpose of the detail, or what he had in view; and if he was present, unless he participated in the killing by firing, or aided or abetted in the act of killing, he would not be criminally re

sponsible. It is stated as a principle of law in 1 Hale's Pleas of the Crown, and which we recognize and approve : 1 "Although if many come upon an unlawful design, and one of the company kill the adverse party, in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of an adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke, or actually abetted them to do it." We forbear to comment further upon the testimony, as the case will undergo another investigation before a jury. We are not satisfied from the proofs in this record, with the verdict of the jury.

The judgment will be reversed, and a new trial awarded.

PRINCIPAL AND AGENT-ORDERS FROM MILITARY AUTHORITY. COMMONWEALTH v. HOLLAND.

[1 Duv. 182.]

In the Court of Appeals of Kentucky, Summer Term, 1864.

The forcible Capture of the Property of a non-combatant, in a county occupied by a military force, in conformity with and under the authority of a military order, is not a criminal offense, cognizable by the civil power of the State.

J. M. Harlan, Attorney-General, for the Commonwealth.
B. W. Bristow, for the appellee.

ROBERTSON, J., delivered the opinion of the court.

The court is urged in this case, involving one principle of belligerent authority in civil war to adapt its opinion, as far as possible to the multiform cases developed by our own existing war, which has been so often prostituted unlawfully to the purposes of spoliation and murder by bands of guerillas and robbers, without legal military authority, and even by the sanction of organized armies. This, we can not do without going beyond the case before us. To say more than the case requires would be ultra-judicial and unauthoritative. Whenever another case of a different class shall come before us for adjudication, we will decide it judicially, and will not now entangle ourselves or embarrass the country by inconclusive utterances of anticipation.

The only judicial question presented by this appeal from a judgment

1 p. 444.

of the Circuit Court, discharging the accused on a verdict of acquittal on an indictment for robbery, is, whether, in a county of Kentucky occupied and controlled by a Confederate army, under the command of General Buckner, the forcible capture of the non-combatant citizen's horses, in conformity with military authority, and in execution of a military order, was a criminal offense cognizable by the civil power of this State.

And in this question, our opinion is that the act, being belligerent in the legal import of that comprehensive term, it was not robbery in the technical sense. Argument to prove this would be superfluous.

Wherefore the judgment is affirmed.

PRINCIPAL AND AGENT - HUSBAND AND WIFE-NUISANCE.
PEOPLE v. LIVINGSTON.

[27 Hun, 105.]

In the Supreme Court of New York, May, 1882.

A Man can not be Convicted of Erecting and continuing a nuisance, when it appears that the land on which it is belongs to his wife, and that he erected the same as her agent.

APPEAL from a judgment of the Court of Sessions of Albany County convicting the defendant of erecting and continuing an obstruction in a public highway.

Edward J. Meegan, for the appellant.

D. Cady Herrick, District Attorney, for the People.

LEARNED, P. J. The defendant's wife, without dispute, is the owner of the land in question; and he, acting for her, erected the alleged obstructions. He was indicted, not only for erecting, but for continuing these obstructions to an alleged highway. And the jury have found him guilty as charged in the indictment. On such a verdict the judgment is that defendant at his own costs abate the nuisance within a certain time, and in default thereof that process issue to the sheriff commanding him to abate the nuisance at the defendant's cost.1 Because the verdict of the jury has found the defendant guilty of continuing the nuisance, therefore, the court, on this verdict, may adjudge that the defendant abate a nuisance on property which, it is admitted, does not belong to him. And if he fails to do this, then the court may direct the sheriff to abate a nuisance on property of a person, viz. : Mrs. Livingston, who has never been heard as to her rights to maintain the structure and who is not a party.

1 Munson v. People, 5 Park. Crim. Cas. 16; Whart. Crim. Laws, secs. 2368, 2369.