towns the like use still prevails. In view of such general use, it is not to be supposed that the Legislature intended, by any language it has used, to make all such church buildings taxable." First Unitarian Society v. Hartford, 66 Conn. 368, 375, 34 Atl. 89, 90. The statute referred to in that case exempted from taxation "buildings exclusively occupied as churches," and the court declined to carry the doctrine of exclusiveness to the extent of defeating the general legislative purpose.

plated in the statute. They were permanent- | house liable to taxation. In the country ly used for those purposes, and not for school purposes; and in that sense, they did not have the exclusive character which would entitle them to the exempting privilege. If it had appeared that they were sometimes used for public entertainments when not required for educational purposes, but that ordinarily they were entirely used by the teachers and scholars, a different result might have been reached in those cases. They are authorities for the proposition that a permanent diversion of the use of school buildings from the direct educational purposes to which they were devoted deprives them of that exclusive character as school buildings which is essential to their exemption from taxation. When, in the Exeter Case, it is said "the use intended as a ground of exemption was exclusive," there was no intention of announcing a rule that the strictest verbal meaning should be given to the word "exclusive." Its significance there is to be determined in view of the facts, and, when so viewed, it is not absurd or dogmatic. It is apparent, therefore, that some degree of liberality bounded by reasonableness must be indulged in determining whether the use made of the parish house for religious purposes has been so far exclusive that it is still a house of public worship and exempted from taxation as such. A reasonable construction must be given to the statute. Scholastic strictness of definition cannot be adopted if it prevents that result.

If the original purpose of the Legislature was to exempt houses of public worship as then used and enjoyed by the public, there is no evidence it has since changed its purpose and adopted a more restricted definition of the same statutory language. The custom of using church buildings for public meetings not directly connected with church work has not ceased. It still exists, especially in the smaller towns, and its observance is not uncommon in the large towns and cities. In view of this almost universal custom, which has coexisted with the statute in question for more than 60 years, nothing but the most pedantic reasoning could disclose any evidence that a house of public worship is not a house of public worship, within the present legislative meaning, if exercises of a secular nature are occasionally permitted in it. If the house serves all the religious purposes for which it was designed, and is not appropriated to other uses in the sense of a The statute exempting "houses of public substantial exclusion of the religious use from worship" was first passed in 1842 (Rev. St. any part of it, no reason is apparent why it 1843, c. 39, § 2), and that expression has does not promote all the uses which the Legbeen retained in all subsequent revisions. islature had in mind when it was exempted The meaning originally attached to it was as a house of public worship. In this view, not a technical one. It was evidently in- it is exclusively used as such a house. So tended to include such buildings as were then long as the church organization occupies it usually and popularly termed "churches" and for such public services of a religious charused for the encouragement of religion and acter as it deems useful and desirable and as piety, which in the Bill of Rights (article 6) the building is adapted to subserve, to the it is declared "will give the best and greatest exclusion of all secular uses, it is used exsecurity to government." Argument is un-clusively as a house of public worship. When necessary to show that the purpose was to it is not required or needed for religious servpromote religious worship, and not to discourage it by limiting the exemption to the very small number of church buildings in the state in which no secular entertainments were permitted. Indeed, it is probable that there were none of that exclusive character. They were used for social, literary, educational, and political gatherings, when not actually occupied for public worship. They accommodated the public in many ways which may be deemed secular, without abridging their use for religious purposes. "In earlier times in this state, and in all the New England states, the church-commonly called the The parish house, it appears, is used by the 'meeting house'-was customarily used for church for all the purposes which it was detown meetings, lectures, concerts, temper-signed to promote, and which are sufficient ance meetings, political addresses, and for to entitle it to exemption from the tax burother like special occasions; and no one ever den as a house of public worship. The church supposed that such use made the meeting activities in it are not lessened or interfered

ices, and when its use for other purposes would not curtail or interfere with the full and free accomplishment of its original and essential design, its remaining unoccupied and useless would not seem to be a necessary requisite for its exemption from taxation. If at such times it is used for some innocent entertainment of a secular nature, would it be reasonable to hold that it thereby lost its exclusively religious character? Is there any evidence that such was the intention of the Legislature? We fail to discover it.

Exception overruled.

BINGHAM and PEASLEE, JJ., did not sit. The others concurred.

STATE v. CLARK.

(83 Vt. 305)

(Supreme Court of Vermont. Orange. March 5, 1910.)

1. CRIMINAL LAW (§ 308*)-PRESUMPTION OF

INNOCENCE.

The presumption of innocence has the force of evidence, and is to be weighed as such. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.*] 2. CRIMINAL LAW (§ 970*)-MOTION IN ARREST-SUFFICIENCY OF INDICTMENT.

for adultery which shows that each of the parAs against a motion in arrest, an indictment ties to the offense is married to a person who is not the other party to the act is sufficient, though there is no allegation that the parties were not married to each other.

with by its occasional use for entertainments. 1. ficient to deprive it of that character, it is If it were not so used, the time of its non- exempt from taxation, and the tax upon it occupation for useful purposes would be must be abated. greater, while its actual occupation for distinctly religious uses would not be increased. There is no evidence of a practical abandonment of the house to secular uses, or of a willingness on the part of the church to limit or diminish its proper use of it. Old South Society v. Boston, 127 Mass. 378. The secular uses are subordinate and temporary -not principal or permanent. The essential character of the house remains unchanged. It is urged that the fact that the plaintiff receives pay for the use of the audience room for entertainments brings the property with. in the taxable class. But that circumstance is not of controlling effect. It is the use made of the property that determines its character under the statute. If the parish house were given over to the occupation of a theater company, to the exclusion of all church services, it could not be said that it was a house of public worship within the meaning of the statute, because the use would be exclusively secular; and this would be so whether the plaintiff received a large, a little, or no rent for the occupation. While it may be true that church property leased to and permanently occupied by others for business purposes would not be exempt (Y. M. C. A. v. Keene, 70 N. H. 223, 46 Atl. 186; Portsmouth Shoe Co. v. Portsmouth, 74 N. H. 222, 66 Atl. 1045), it does not follow that an occasional and temporary occupation by third parties who pay for the privilege deprives the property of its nontaxable character. If there is no substantial abandonment of the property by the church to uses other than those it was designed to promote, the receipt of pay for its temporary use, when not needed or desired for religious services, is merely incidental and subsidiary. In the absence of evidence that the plaintiff has ceased to occupy the parish house for all the religious uses it is adapted to, or that it has permanently relinquished it or any part of it to nonreligious uses, an occasional fee received by the church, for a lecture of an hour's du

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.*] 3. INDICTMent and InforMATION (§ 91*)—USE OF WORD "FELONIOUSLY."

P. S. 5983, declaring that offenses which may be punished by death or imprisonment in the state prison are felonies, and that other offenses are misdemeanors, affords no test for the requirements of pleading, and hence an indictment for adultery, though a felony under loniously" done, since by common law and by the statute, need not allege the act to be "festatute (P. S. 5881, 5882) intent is not an ingredient of the crime.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. 88 261-265; Dec. Dig. § 91.*]

4. WORDS AND PHRASES-"FELONIOUSLY."
It is said that the word "feloniously" signi-
fies an intent to commit a crime; that it means
that the act proceeded from an evil heart or
purpose; that it is ordinarily but a repetition
of what is expressed in other and simpler words.
[Ed. Note.-For other definitions, see Words
and Phrases, vol. 3, pp. 2730-2735.]

Exceptions from Orange County Court;
William H. Taylor. Judge.

Anna Clark was convicted of adultery, and

ration delivered in it, would clearly be in- she excepts. Reversed, and cause remanded.

sufficient evidence that in such a case the Legislature intended to exclude it from the exemption to which it would otherwise be entitled. Such an interpretation would ascribe to the Legislature an extremely narrow and frivolous purpose. The income incidentally derived by the plaintiff from the occasional use of the parish house for nonreligious gatherings, when not otherwise used or needed, does not show that it is devoted to business purposes, or that it is maintained as a commercial establishment.

As the religious uses which the parish house serves are sufficient to render it a house of public worship, and as its use for other purposes as disclosed by the case is not suf

The respondent moved in arrest of judgment for that the information does not charge the alleged act to have been done feloniously, and for that it does not allege that at the time of the act charged the respondent and her paramour were not husband and wife. Motion denied, to which the respondent excepted. Subject to the objection and exception of the respondent, the state's attorney, in his argument to the jury, referred to the fact that the respondent had recently given birth to a child as a circumstance that must convince the jury of her guilt. But it appears from the transcript of the evidence, which is made a part of the bill of excep tion, that the respondent's husband had not

seen her for two years previous to the birth | neither section do we find the word "feloof the child, and that during this time she niously," nor anything referring to knowledge had been living in the family of the person with whom the offense is charged to have been committed in circumstances of familiarity which indicated an illicit relation.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Stanley C. Wilson, State's Atty., for the State. David S. Conant, for respondent,

MUNSON, J. The respondent has been convicted of adultery, and claims a reversal on four grounds, one of which-an objection to the argument-is clearly without merit, and need not be considered. The court charged the jury that the presumption of innocence does not have the force of evidence, and is not to be weighed as such. The reverse of this proposition is the settled law of this jurisdiction. State v. Marston, 82 Vt. 250, 72 Atl. 1075.

or intent. It appears, then, that there is nothing in the status of adultery as known to the English law, nor in the language of our statute establishing the crime, that requires the use of "feloniously," either as a technical word or as otherwise descriptive of the offense. It was not a felony at common law, and was not made a felony by the statute which created the offense, nor by the alteration which raised the penalty to imprisonment in the state prison. It is a felony only by virtue of a general statutory classification based on the nature of the pun

were

ishment. Felonies at common law
crimes which worked a forfeiture of the of-
fender's lands or goods. Judged by this test,
there would now be no felonies, for forfei-
tures no longer follow conviction. State v.
Scott, 24 Vt. 127. But our statute maintains
the distinction between felonies and misde-
meanors by a rule based upon modern pen-

The respondent moved in arrest of judg-alties. Statutes of this character provide an ment for that the information did not allege that the respondent and the person with whom the act was alleged to have been committed were not married to each other. The allegations which show that the respondent and the other party to the carnal act were each married to a person who was not the other party to the act show argumentatively that they were not married to each other; and this is sufficient as against a motion in arrest. Sheridan v. Sheridan, 58 Vt. 504, 5 Atl. 494.

unfailing test for determining the classification of a crime. But the rule of the common law had ceased to perform this office long before forfeitures were abolished. Parliament often declared offenses to be felonies without subjecting the offender to a forfeiture, and removed the penalty from other offenses which nevertheless continued to be recognized as felonies. Reagan v. United States, 157 U. S. 302, 15 Sup. Ct. 610, 39 L. Ed. 709. These acts of Parliament, as far as they were amendatory and explanatory of the common law, were a part of the common law adopted by the colonies, and the inconsistencies they introduced have always embarrassed the subject in this country.

The motion in arrest is put upon the further ground that the information does not charge that the act was done feloniously. Adultery was not recognized as a crime by the common-law courts. State v. Cooper, 16 It was the theory of the common law that Vt. 551. The early statutes of this state pro- the word "feloniously" alleged a particular vided for its punishment by fine and whip-intent essential to the crime, and that no ping. Laws 1797, p. 164. It was argued in other expression would serve the purpose. State v. Cooper that the offense was made a 4 Bl. 307; 1 Hawk, P. C. 71. It is difficult, felony by the act of 1818 (Acts 1818, p. 11), however, to get from the common-law writers which made it punishable by imprisonment in a clear understanding of that wherein this the state prison, but the court held other- term was thought to allege more than was wise. It is now a felony by virtue of P. S. covered by other allegations of criminal in5983, which declares that offenses punishable tent. Nothing more definite in this respect by death or imprisonment in the state pris- can be gathered from the adjudged cases. It on are felonies. This provision was first en- is said that the word "feloniously" signifies acted in the Revision of 1880. Adultery was an intent to commit a crime; that it chara private wrong at common law, but was an acterizes a mind bent on doing what is offense against the ecclesiastical law; and wrong; that it means that the act proceeded the term as used in the two jurisdictions had from an evil heart or purpose; that it is ordifferent meanings. Our penal statutes re- dinarily but a repetition of what is expressgarding adultery are found in P. S. 5881, ed in other and simpler words. 12 Ency. 5882. P. S. 5881 does not create the crime Law (2d Ed.) 1029; State v. Douglas, 53 Kan. of adultery by defining it, but punishes what 669, 37 Pac. 172; Reg. v. Tolson, 23 Q. B. was known as adultery under the common Div. 168, 193; Hocker v. Commonwealth law, referring to it by name, and leaving it (Ky.) 70 S. W. 291; State v. Scott, 109 Mo. to be defined by that law. P. S. 5882 makes 232, 19 S. W. 89. It is evident that the intent adulterous a connection that was within the here described is found in several offenses Inhibition of the ecclesiastical law, but was which were misdemeanors at common law, not covered by the definition of the common as well as in felonies. This is equally true law. See State v. Searle, 56 Vt. 516. In of some offenses which are misdemeanors

CIDE.

when done in the execution of public justice. The taking of human life is justifiable, [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 134; Dec. Dig. § 104.*

For other definitions, see Words and Phrases, vol. 4, pp. 3910-3913.j

under our statute. For instance, one who 3. HOMICIDE ( 104*) — "JUSTIFIABLE HOMI. steals goods not exceeding $25 in value acts with the same criminal intent as the one who steals goods exceeding that value. It comes to what is said in State v. Scott, just cited: "If the facts proved establish a felony, then the crime was committed feloniously. If they establish a misdemeanor, the offense I was not feloniously committed." P. S. 5983 declares that offenses which may be punished by death or imprisonment in the state prison are felonies, and that other offenses are mis

demeanors. This provision makes offenses

felonies or misdemeanors without regard to the ingredients of the crime, and so affords no test for the requirements of pleading. Offenses made felonies by this statute are not statutory felonies in the ordinary sense. A statute creating an offense by description may be such as to require the use of "feloniously." The term is important when descriptive of the crime, but is not necessary to indicate the punishment. A statute which creates a crime regardless of intent, and provides for its punishment by imprisonment in the state prison, creates a felony; but the fact that the statute classes it as a felony does not require the allegation of an intent which is not an element of the crime. A holding that an indictment for an offense punishable by imprisonment in the state prison is sufficient without the use of "felon

4. HOMICIDE (§§ 109, 125*) "EXCUSABLE HOMICIDE.'

The taking of human life is excusable, when committed either by misadventure or in self-defense.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 138, 139, 189, 190; Dec. Dig. §§

109, 125.*

For other definitions, see Words and Phrases, vol. 3, pp. 2555, 2556.]

5. HOMICIDE (§ 125*)—“HOMICIDE BY MISAD

VENTURE.

"Homicide by misadventure," constituting another where the slayer is doing a lawful act, excusable homicide, is the accidental killing of unaccompanied by any criminally careless or reckless conduct.

Cent. Dig. §§ 189, 190; Dec. Dig. § 125.*
[Ed. Note. For other cases. see Homicide,
For other definitions, see Words and Phrases,
vol. 4, p. 3340.]

6. HOMICIDE (§ 117*)-"Self-Defense."
Homicide in "self-defense" occurs where
one is assaulted on a sudden affray, and in de-
fense of his person, where certain and immedi-
ate suffering will be the consequence of waiting
for the assistance of the law and there is no oth-
er probable means of escape, he kills his assail-
ant.

[Ed. Note. For other cases. see Homicide,

lously" will not make the offense any the
less a felony. The classification is determin-vol. 7, pp. 6402-6405; vol. 8, p. 7797.]
ed by an arbitrary rule upon which the tech-
nicalities of pleading have no effect. The
allegation that an act was done feloniously
is not introduced to determine the character
of the punishment, but the punishment as-
signed to the offense determines that the act
was a felony.

Cent. Dig. §§ 164-167; Dec. Dig. § 117.*

For other definitions, see Words and Phrases,

We hold that the crime of adultery may be sufficiently charged without the use of "feloniously."

Judgment reversed, and cause remanded.

(7 Pen. 479)

STATE v. BLACKBURN.
Court of Oyer and Terminer of Delaware.
New Castle. Feb. 5, 1892.)

i. INDICTMENT AND INFORMATION (§ 189*)-
LESSER OFFENSES INCLUDED IN THE CHARGE.
Under an indictment for murder of the
first degree, the jury may convict of murder of
the first or second degree or of manslaughter.

[Ed. Note.-For other cases, see Indictment

and Information, Cent. Dig. 88 582-595; Dec. Dig. § 189.*]

2. HOMICIDE (§ 2*)-NATURE OF "HOMICIDE." "Homicide" is the killing of any human being, and is either justifiable, excusable, or felonious.

[Ed. Note. For other cases, see Homicide, Cent. Dig. 4; Dec. Dig. § 2.*

For other definitions, see Words and Phrases, vol. 4, pp. 3339, 3340; vol. 8, p. 7680.]

7. HOMICIDE (§ 31*)-"MANSLAUGHTER.
"Manslaughter" is the unlawful killing of
another without malice, either express or im-
plied, and without premeditation, and is either
voluntary or involuntary.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 52; Dec. Dig. § 31.*

For other definitions, see Words and Phrases, vol. 5, pp. 4338-4342; vol. 8, p. 7715.] 8. HOMICIDE (§ 33*) — “VOLUNTARY MAN

SLAUGHTER.

"Voluntary manslaughter" occurs where one kills another in the heat of blood, and usually arises from fighting or from provocation.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 54; Dec. Dig. § 33.*

For other definitions, see Words and Phrases, vol. 8, pp. 7350, 7351.]

9. HOMICIDE (§ 34*) - "INVOLUNTARY MANSLAUGHTER."

"Involuntary manslaughter" occurs where one in doing an unlawful act not felonious nor tending to great bodily harm, or in doing a lawful act without proper caution or requisite skill, undesignedly kills another.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 55; Dec. Dig. § 34.*

For other definitions, see Words and Phrases, vol. 4, pp. 3762, 3763; vol. 8, p. 7692.] 10. HOMICIDE (§ 11*)—Murder—“Malice.” The "malice" essential to constitute murder is not restricted to spite or malevolence towards decedent, but means that general malignity or recklessness which proceeds from a heart devoid of a just sense of social duty and fatally bent on mischief, and is implied by law from every deliberate cruel act committed by one per

son against another; and where the act from | unaccompanied by circumstances of justification, which death ensues appears prima facie to have been committed deliberately, the law presumes that it was done in malice, and accused must show that the offense is of a mitigated character and does not amount to murder.