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Second Edition
Texas Criminal Law

Principles and Practices
Jerry L. Dowling
Contents vii
Chapter 4 Parties to Offenses 78

Introduction 78
Common Law Approach to the Law of Parties 78
Texas Law of Parties 79
Issues in Law of Parties 82
Criminal Liability of Corporations 85
In the Courtroom 89 • Citizen Decision Points 92 •
Criminal Law Replay 92
Chapter 5 Criminal Homicide 95

Introduction 96
Common Law Criminal Homicide 96
American System of Classification 97
Issues in Criminal Homicide 100
Texas Law of Criminal Homicide 104
Criminal Law Replay 122 • Crimegraph 124
Chapter 6 Assault and Sexual Assault 131

Introduction 132
Common Law Assaultive Conduct 132
Modern Terminology 133
Texas Law of Assault 133
Sexual Assault 154
Common Law Rape 154
Texas Law of Sexual Assault 154
Special Evidentiary Rules in Law of Sexual Assault 160
Other Sex Crimes 162
Chapter 7 Kidnapping and Related Offenses 178

Kidnapping 178
Common Law Kidnapping 179
Texas Law of Kidnapping 180
Issues in the Law Regarding Kidnapping 184
Abduction-related Offenses 185
Chapter 8 Property Destruction Offenses 195

Introduction to Arson 195
Common Law Arson 196
viii Contents
Texas Law of Arson 197

Criminal Mischief 204
Traditional View of Criminal Damage to Property 205
Texas Law of Criminal Mischief 205
Chapter 9 Theft, Fraud, and Related Offenses 217

Introduction to Theft 218
Common Law Larceny 219
Texas Law of Theft 221
Special Problems in the Law of Theft 232
Texas Law of Theft of Service 235
Special Problems in Law of Theft of Service 238
Theft of Trade Secrets 239
Fraud 240
Identity Theft 245
Chapter 10 Robbery, Burglary, and Criminal

Trespass 259
Introduction 260
Common Law Robbery 261
Texas Law of Robbery 262
Issues in Robbery 267
Introduction to Burglary 268
Common Law Burglary 268
Texas Law of Burglary 271
Introduction to Criminal Trespass 279
Modern Criminal Trespass Statutes 279
Texas Law of Criminal Trespass 280
Criminal Trespass and the Constitution 284
Issues in the Law of Criminal Trespass 285
Chapter 11 Offenses Against Government

Operations 300
Introduction 301
Offenses Concerning Reporting of Crime 301
Contents ix
Offenses Interfering With Investigation and Prosecution 304

Offenses Affecting the Integrity of the Justice System 313
Chapter 12 Public Disorder, Indecency, Health, and

Safety Offenses 334
Introduction 335
Disorderly Conduct 335
Other Disorderly Behavior 343
Prostitution 344
Weapons Offenses 345
Gambling 349
Drug Offenses 351
Chapter 13 Intoxication Offenses 370

Introduction 370
Public Intoxication 372
Driving While Intoxicated 375
Intoxication Assault 377
Intoxication Manslaughter 378
Chapter 14 Preparatory Offenses and Organized

Criminal Activity 387
Introduction 388
Criminal Attempt 388
Limitations on Law of Criminal Attempt 391
Issues in Law of Criminal Attempt 391
Defenses to Charge of Criminal Attempt 392
Criminal Conspiracy 393
Issues in Law of Criminal Conspiracy 395
Defenses to Charge of Criminal Conspiracy 395
Organized Criminal Activity 397
Criminal Solicitation 398
Summary of Preparatory Offenses 400
Unlawful Use of Criminal Instrument 400
x Contents
Chapter 15 General Defenses and Justification 412

The Process of Criminal Defenses 413
Infancy/Age 415
Entrapment 416
Mistake of Law 420
Mistake of Fact 421
Duress 422
Insanity 423
Intoxication as a Defense 426
Nonstatutory Defenses 427
Introduction to Justification 429
Public Duty 430
Necessity 431
Self-defense 431
Defense of Property 435
Law Enforcement Use of Force 438
Use of Force in Special Relationships 439
Chapter 16 Federal Criminal Law 450

Introduction 450
Federal Criminal Law and the Constitution 451
Federal and State Criminal Prosecutions 455
Racketeer Influenced and Corrupt Organizations 455
The Criminal Law and Terrorism 456
Appendix Using the Texas Penal Code and Court

Decisions 467
Glossary of Terms 473

Index 481
Preface
New to this Edition

This second edition contains a substantial amount of new material.
• Chapter 16, Federal Criminal Law, is a new chapter, devoted exclusively to federal criminal
law and, in particular, anti-terrorism statutes. While peripheral to Texas state law, the federal
criminal law has become such an important part of the American justice system that a student
of the topic needs an understanding of its scope and limitations. Understanding federal law is
particularly important in any discussion of terrorism.
• In addition, the Texas drug laws and DWI statute are newly examined in chapters 12 and 13.
• Also new are close looks at prostitution, gambling, and organized crime activity, including law
related to street gangs (chapters 12, 13, and 14).
• To aid in student learning, relevant case excerpts called In the Courtroom have been added to
each chapter. This material consists of edited appellate court opinions that reinforce main points
discussed in the chapter. Review of the opinions can be used to expand the student’s under-
standing of the court’s role in interpreting the meaning and application of substantive criminal
law. In most instances, the cases presented offer excellent opportunities for discussion of the
application of the criminal law to specific circumstances and whether the result was fair and just.
• The new Citizen Decision Points units allow students to consider the broader context of use
of the criminal sanction in Texas. Questions are presented that require the reader to digest the
principles presented and think about their societal ramifications. As future community lead-
ers, the students are asked to consider how the criminal law might be altered and improved.
• Finally, each chapter of Texas Criminal Law now concludes with a recapitulation of the chap-
ter’s key points. This Criminal Law Replay helps students determine whether or not they have
mastered the major content in the chapter. Indeed, the student could use this material as an
outline for note-taking when reading each chapter.
The needs of an undergraduate criminal justice scholar studying criminal law, or just the
laymen wanting to know about their state’s criminal statutes, are different in both degree and
kind from the needs of a law school student preparing to become a practicing attorney. The goal
of Texas Criminal Law—Principles and Practices is to meet this specific need in an interesting and
intellectually stimulating manner without the reader’s quest becoming obstructed by legal jargon
and the tedium that can arise in examining statutory material or case opinions. I trust that Texas
Criminal Law will assist in educating criminal justice students and criminal justice practitioners
about the important topic of substantive criminal law.
Texas Criminal Law—Principles and Practices is much different than existing undergraduate
criminal law textbooks. First, while Texas-related supplements exist for most of the generic substantive
criminal law texts, Texas Criminal Law is believed to be unique among undergraduate college texts
in its exclusive emphasis on the criminal laws of the Lone Star State. This state-specific focus exists
because contemporary penal law is almost totally a product of legislative enactments. While many
similarities exist across each of the 50 states’ criminal codes, each state is also unique in how it defines
and imposes the various criminal sanctions. These differences range from variations in terminology
(e.g., larceny versus theft) to whether or not certain conduct (e.g., public intoxication) is even a crime at
all. Accordingly, for students of criminal law who reside in Texas or plan a post-graduation career with
a Texas justice agency, a text that centers on the laws of this state serves their needs best.
Second, historical antecedents such as the English Common Law are important to understand-
ing the origins of modern criminal statutes. Each chapter of this text introduces the offenses with
discussion of their English Common Law roots. Likewise, early Texas laws are mentioned as relevant.
However, modern criminal statutes, particularly those in Texas, have so modified the traditional defi-
nitions of crimes that in many instances the only thing recognizable between the Common Law and
xi
xii Preface
the modern statute is the name of the offense. Additionally, as appropriate, the general state of a
particular criminal offense throughout the nation is presented; for example, Chapter 5, “Criminal
Homicide,” contains a discussion of the primary methods by which other states classify criminal homi-
cides. Similarly, in Chapter 15 the rules used in other jurisdictions to determine whether a criminal
defendant was entrapped are explored. This discussion serves to broaden the reader’s perspective on
the topic of entrapment because Texas has its own unique approach to this defense, an approach out
of the mainstream of American criminal law. However, the thematic focus remains on the e lements of
the major criminal offenses and defenses in Texas as described in the Texas Penal Code.
Third, frequently statute books say one thing but the actual implementation of the law occurs
in practice in a different manner. Texas Criminal Law, where relevant, overviews the actual practices
throughout the state based on the author’s four decades of experience with the criminal justice sys-
tem. For example, the manner in which theft by check and issuance of worthless check offenses are
handled in actuality is not easily determined from only reading the relevant Penal Code sections.
Likewise, the Texas court system and the variations in the manner in which prosecutors file formal
charges are overviewed in Chapter 3. While the text is not intended to substitute for an introduction
to the Texas criminal justice system book, the day-to-day procedures used by Texas law enforce-
ment, prosecutorial, and correctional agencies are highlighted where their understanding will assist
the student of criminal law.
The reader is strongly encouraged to have at hand a current copy of the Texas Penal Code
when reading this text. While the pages of Texas Criminal Law do contain many excerpts from
Texas criminal statutes, many other important sections are not included because of space consider-
ations. Only by reading and analyzing the referenced statutes can one fully understand the content
and scope of application of the particular law being examined in this text. The appendix contains
directions on understanding the organizational structure of the Texas Penal Code and suggestions
regarding how best to read and comprehend its contents. In addition, the appendix includes helpful
suggestions on reading and briefing the court opinions that appear within the text. This material
should be reviewed prior to embarking on Chapter 1.
The style of the text is a bit more informal than traditional criminal law textbooks. A large
number of scenarios are used and much of the text is conversational in tone. In my years of teaching
the topic, I have found that many students learn best by exploring examples as opposed to discussing
abstract concepts. In much of the book, criminal law principles are presented by playing off of a
particular fact situation. Many of these factual scenarios are relevant to college-age individuals, such
as date rape or the question of when a loud party rises to the level of disorderly conduct.
The informal style found in Texas Criminal Law does not mean, however, that the content is less
than scholarly. Rather, each chapter contains a large number of references to the source of the content.
These endnotes serve several purposes. First, the endnotes establish the origin of the principles of law
and their interpretation found in the text narrative. In most instances, this is a reference to either a
particular section of the Texas Penal Code or to a Texas appellate court decision interpreting a por-
tion of the Penal Code. When constitutional issues are implicated, references to U.S. Supreme Court
cases are given. The endnotes also serve to provide parenthetical material that may be tangential to
the main content under discussion. This use of the endnote avoids a digression from the topic at hand.
However, the reader should examine this explanatory material to expand his or her understanding of
the narrative. Third, much material in the endnotes provides the reader the opportunity for further
research on the particular topic. Scholarly books, law review articles, collected annotations, and the
like are referenced for the reader who wishes to explore a particular matter in greater depth.
INSTRUCTOR SUPPLEMENTS
Instructor’s Manual with Test Bank Includes content outlines for classroom discussion, teaching
suggestions, and answers to selected end-of-chapter questions from the text. This manual also
c ontains a Word document version of the test bank.
Preface xiii
TestGen. This computerized test generation system gives you maximum flexibility in creating
and administering tests on paper, electronically, or online. It provides state-of-the-art features for
viewing and editing test bank questions, dragging a selected question into a test you are creating,
and printing sleek, formatted tests in a variety of layouts. Select test items from test banks included
with TestGen for quick test creation, or write your own questions from scratch. TestGen’s random
generator provides the option to display different text or calculated number values each time ques-
tions are used.
PowerPoint Presentations Our presentations offer clear, straightforward outlines and notes to
use for class lectures or study materials. Photos, illustrations, charts, and tables from the book are
included in the presentations when applicable.
To access supplementary materials online, instructors need to request an instructor access code. Go
to www.pearsonhighered.com/irc, where you can register for an instructor access code. Within
48 hours after registering, you will receive a confirming email, including an instructor access code. Once
you have received your code, go to the site and log on for full instructions on downloading the materials
you wish to use.
ALTERNATE VERSIONS
eBooks This text is also available in multiple eBook formats including Adobe Reader and
CourseSmart. CourseSmart is an exciting new choice for students looking to save money. As an
alternative to purchasing the printed textbook, students can purchase an electronic version of the
same content. With a CourseSmart eTextbook, students can search the text, make notes online,
print out reading assignments that incorporate lecture notes, and bookmark important passages
for later review. For more information, or to purchase access to the CourseSmart eTextbook, visit
www.coursesmart.com.
Professor Jerry L. Dowling, J.D.
Acknowledgments
The author would like to acknowledge the many who assisted personally or through emotional
support in the creation of this text. First are the reviewers who provided critiques and suggestions
that helped in making the book a better, more useful classroom text. Thanks to Douglas Shuler at
Paris Junior College and Chris Carmean at Houston Community College.
Second, I would be remiss in not acknowledging the support provided by Sam Houston State
University. Access to the university library’s legal holdings and electronic databases was crucial
to the successful completion of the text. Of special note is the opportunity to write a substantial
portion of the text while on faculty development leave from the College of Criminal Justice. This
leave was made possible to a large degree through the support of former SHSU Provost and Vice
President for Academic Affairs David E. Payne and the former Dean of the College of Criminal
Justice Richard H. Ward. To both, I owe thanks.
Senior Acquisitions Editor Gary Bauer and the staff at Pearson deserve special recognition for
their patience and direction in the development and production of this textbook.
A major thanks goes out to the hundreds of Texas peace officers and SHSU undergraduates
who I have had the pleasure of training and teaching about criminal law in my three decades resid-
ing in the state. Not a class meeting or training session occurred where the students did not educate
me as well. The teacher becomes better because of the insights provided by the students.
Finally, a special thanks goes to my family and friends, and especially to my wife, Katherine,
for their encouragement, tolerance, support, and most importantly patience during the writing of
this text.
xiv
About the Author
Jerry L. Dowling is Professor Emeritus of Criminal Justice at Sam Houston State University,
Huntsville, Texas. He has taught courses on criminal law, criminal procedure, and other law-based
courses at both the undergraduate and graduate levels at SHSU for over 40 years. During the same
period, he has c onducted numerous legal training sessions for Texas peace officers, police chiefs,
and sheriffs. He holds the Doctor of Jurisprudence degree from the College of Law at the University
of Tennessee. Prior to becoming a university teacher, Professor Dowling served as a Special Agent of
the Federal Bureau of Investigation.
xv
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▪ ▪ ▪ ▪ ▪
1
Foundations of Criminal Law
LEARNING OBJECTIVES
After reading this chapter, the student will be able to:
1. Explain the four attributes of a crime.
2. Identify the sources of American criminal law.
3. Explain the ways to classify crime.
4. Identify and explain the six statutory purposes of the Texas Penal Code.
5. Identify and explain the practical and legal limitations on the creation of criminal laws.
6. Identify and explain the criminal jurisdiction of the State of Texas.
BOLO
The reader should be on the lookout (BOLO) for the meaning of the following terms. Knowledge of the mean-
ing of these terms will greatly assist the reader in understanding the primary elements of the chapter.
Alcalde General deterrence theory Retribution
Breach of the peace Incapacitation Specific deterrence
Civil violation Malum in se Stare decisis
Codification movement Malum prohibitum Substantive criminal law
Common Law of England Misdemeanor Territorial jurisdiction
Crime Model Penal Code Texas Penal Code
Crimes involving moral Preemption doctrine Treason
turpitude Principle of legality Void-for-vagueness doctrine
Ex post facto law Procedural criminal law
Felony Rehabilitation
INTRODUCTION
This text examines the substantive criminal law in Texas. Substantive criminal law concerns the defini-
tions of crimes and their penalties, in contrast to procedural criminal law, which focuses on the imple-
mentation of the criminal sanction through the laws of arrest, search, seizure, and confessions, and the
courtroom rules of evidence. While some overlap exists between the two categories of criminal law (e.g.,
Entrapment is a statutory defense, but pre-trial police procedures influence whether or not the defense will
be available to an accused.), an understanding of each is necessary to fully appreciate the legal complexities
of the state,s modern justice system. Knowledge of the kinds of behavior that are condemned by society as
highly undesirable, and thereby deemed criminal, forms one of the cornerstones of the study of criminol-
ogy and criminal justice.
1
2 Chapter 1 • Foundations of Criminal Law
Virtually everyone has a basic notion of what is legal and what is illegal. This knowl-
edge comes from being reared in a particular society, with its culture, customs, religions, and
value s ystems being imprinted from birth. Additionally, mass media—particularly televi-
sion and motion pictures—imprint citizens with ideas about society’s rules concerning crime
and punishment.
For the average citizen, such indoctrination likely provides enough guidance to be a pro-
ductive member of society. One can function reasonably well knowing that stealing is unlawful,
driving while intoxicated is dangerous and illegal, and engaging in sexual relations without the
consent of the other person is subject to criminal prosecution. For the student of the American
criminal justice system, such a cursory understanding is far from sufficient. Individuals who
seek to work in the justice system must possess a clear understanding of the criminal law in
both theory and application. Indeed, many veteran justice professionals are more knowledgeable
about the criminal law than most attorneys, the bulk of whom rarely engage in this specialized
area of legal practice. The need for an in-depth understanding of criminal law is particularly
acute for police officers who frequently must make the initial determination of whether or not
cause exists to believe a crime has been committed. Likewise, individuals employed in commu-
nity supervision, probation, parole, and institutional correctional agencies should possess an
understanding of the criminal sanction. Their daily work exists because of substantive criminal
law. Appreciating the rules and foundations of criminal law places their job in the larger context
of the justice system.
Study of American criminal law is complicated by a single fact: While there exists a great
commonality in the core definition of crimes from state to state, subtle and sometimes very
important variations also exist. These variations may range from labeling, such as whether
taking someone’s property without consent is called “larceny” or “theft,” up to whether the con-
duct itself is even declared unlawful—public intoxication, for example. While the broad princi-
ples of criminal law operate in every state, one needs to examine a specific jurisdiction’s criminal
code to determine exactly what conduct is sanctioned and the nature of the penalty assessed for
a violation.
Under our federal system of government, every state has enacted its own set of criminal
laws, usually called the penal code, criminal code, or something similar.1 Further, a separate
criminal code exists for the District of Columbia and the armed forces, as well the federal govern-
ment. Thus, more than 50 possible definitions of murder, robbery, rape, and disorderly conduct
exist.2 As a consequence, creation of a single text that is useful and accurate for every jurisdiction
is virtually impossible.
This text focuses on the substantive criminal law of the State of Texas. While it is anticipated
that the reader will be either a student in a Texas college, a cadet in a Texas police training facility, or
simply a Texan interested in the topic, Texas law serves as an excellent guide for understanding the
criminal law not only of the state but also of the nation as well. The Texas Penal Code is a modern
compilation of criminal laws. It is generally reflective of the contemporary thinking of criminal law
scholars and policy makers. The code does not contain archaic or oddball statutes that have long
outlived their usefulness. Both the definitions of offenses and the punishment ranges are reflective
of current criminological thought. Indeed, one group of legal scholars has ranked the Texas Penal
Code as the top compilation of criminal law in the United States.3 Credit for this can largely be
laid at the feet of the drafters of the Model Penal Code, which greatly influenced the content and
structure of the Texas Penal Code, and the nearly 100 individuals and organizations who worked for
eight years to update Texas’s criminal laws.
In 1931, the American Law Institute (ALI), an organization of judges, lawyers, and legal schol-
ars, proposed the development of a comprehensive penal code that state legislatures could use as a
guide in the revision of their criminal laws. It was not until 1962, however, after 13 tentative drafts,
that the prototype code was published. ALI’s Model Penal Code has served as a basis for the revision
of the criminal codes of many states, including Texas.4
Chapter 1 • Foundations of Criminal Law 3
TABLE 1-1 Historical Development of Criminal Law in Texas

Date Government Penal Laws
1824–1829 Austin's Colony Rules of conduct drafted by Austin and approved by
Mexican authorities
1824–1836 Mexican States of Mexican civil law system
Coahuila and Texas
1836–1845 Republic of Texas English Common Law and a few legislative enactments
1845–1856 State of Texas English Common Law and a few legislative enactments
1856 State of Texas First written penal code enacted
1879 State of Texas Limited revision of 1856 penal code
1895 State of Texas Limited revision of existing penal code
1973 State of Texas Enactment of completely new penal code (effective
Jan. 1, 1974)
1994 State of Texas Major revision of penalty structure within penal code
Using the Model Penal Code as a basis, a committee of the State Bar of Texas in 1965 began
the work of revising the then existing 1925 Penal Code. The State Bar undertook the revision effort
because, as the chair of the revision committee noted, “The existing Texas Penal Code is a bulky,
confusing, and conflicting compilation of the original Texas Penal Code of 1856 plus additions and
amendments. The accumulation of 110 years of legislation today [1967] rests uneasily upon a foun-
dation laid twenty-one years after the Texas Revolution.”5 A draft of a proposed new penal code was
presented to the Texas Legislature in 1970, but lawmakers waited until 1973 to take action.6 This
1973 Texas Penal Code, with some modifications over the intervening years, contains the primary
criminal offenses for the state.
PRIMARY ATTRIBUTES OF A CRIME

Definition
To study and understand criminal law, the reader must first comprehend the legal concept of a
crime. From a definitional perspective, the term crime can be characterized in a variety of ways.
Cynics might say that a crime is anything the legislature says is a crime. They are correct, of course,
in a general sense. In Texas, and every other state, conduct can become a crime through legislative
enactment. Likewise, behavior is normally not considered to be a crime unless a legislative body
actually enacts a law so declaring.7
Others might opt for a more formal definition of crime. Sir William Blackstone (1723–1780),
a famous scholar of the English Common Law, defined the term as “[a] crime, or misdemeanor, is
an act committed, or omitted, in violation of a public law, either forbidding or commanding it.”8
Blackstone’s definition includes three important aspects that will be discussed subsequently: the
notion that crime involves an act, a public law declares the conduct criminal, and the illegal behavior
can involve either actual conduct or a failure to act.
More modern legal scholars have defined the term as follows: “Crime is any social harm defined
and made punishable by law.”9 This definition adds two other important concepts: First, crime
involves social harm, and, second, conduct that is deemed to be a crime is subject to punishment.
Harm and punishment will be explored subsequently.
Interestingly, most states, including Texas, do not specifically define crime in their respective
penal codes, but rather only present the elements of behavior that constitute a specific offense, such
as murder, robbery, burglary, and the like. This lack of definition is understandable since one is
prosecuted for a particular offense, not for engaging in criminal conduct.
Whichever definition—or nondefinition—one prefers, scholars generally agree that the
concept of crime contains several important attributes that distinguish it from other aspects of the
law. These elements are the following:
• Government defines the illegal conduct.
• Government is the victim.
• Government prosecutes the case.
• Judgment is payable to the government.
Attributes of a Crime
Government Defines the Illegal Conduct Crimes are created by a governmental
body, which means that Congress, in the case of federal criminal law, and state and local l egislative
bodies, such as the Texas Legislature or a city council, formally pass a bill barring (or in rare
instances, requiring) certain behavior by the citizenry and providing a penalty for noncompli-
ance. This principle of legality is expressed by the Latin phrase nullum crimen sine lege (no crime
without law). This requirement, while somewhat obvious, is nonetheless quite important. Suppose,
one July 4th evening about 9 p.m. a police officer is called to the scene of a party at your apart-
ment complex. You and other revelers are frolicking about the swimming pool, dancing to recorded
music, drinking beer, and otherwise enjoying yourselves. A few of the revelers are shooting fire-
works. Which of these behaviors is a crime? Maybe all; maybe none. If the music is so loud it
disturbs the peace, then disorderly conduct is being committed. If the partiers are underage, a
violation of the alcoholic beverage laws may be occurring. However, the officer determines that
the audio player’s sound level is not excessive, and everyone at the pool appears to be an adult. But,
what if the apartment manager has posted a rule at the pool that prohibits electrical devices (the CD
player), hazardous objects (the fireworks), and alcoholic beverages (the beer) at the poolside? No
criminal law violation has occurred! The apartment manager as part of the lease, or in establishing
“house rules,” can certainly bar alcohol and fireworks at the poolside or limit the hours for the use
of the pool. However, the rules violations by the party participants are not contrary to the state or
local criminal law because the rules, even though they may well help maintain social order within
the apartment complex, were not enacted by a governmental body. The rules violations could result
in termination of the participants’ apartment leases, a ban on the use of the pool, or some other
sanction by the apartment manager, but the conduct is not criminal as no government-enacted
statute is violated.
This concept that only a governmental entity with lawmaking authority can create crimi-
nal law has become increasingly relevant in suburban Texas. Recent decades have seen the rise of
planned residential communities, often outside the incorporated limits of a city. In order to make the
lands attractive to potential residents, land use is often limited through so-called deed restrictions.
These land use restrictions are enforced through a community association in which each resident is
a member. While these restrictions often concern home design criteria, lot size, and the like, they
may also place limits on certain other aspects of life—for example, no hunting, no fireworks, and
no powerboats on community lakes. Violation of these restrictions is not a crime, but a civil matter.
Accordingly, peace officers will not normally enforce these rules. Rather, habitual violators will be
subject to civil suit by the owners’ association.
Both federal and state authorities have also used this criminal/non-criminal distinction
to advantage. At the federal level, many violations of the Internal Revenue Code can result in a
civil penalty. On the immigration front, illegal entry into the country is deemed not to be a crime
but to be a civil violation, which normally imposes a monetary fine but none of the collateral
consequences that occur with a criminal conviction. Classification of immigration law violations as
merely civil has created a circumstance in which most local law enforcement agencies will not arrest
an undocumented alien solely based on their immigration status because the illegal entry is not a
criminal violation.
On the local level, in recent years many communities in and out of Texas have installed red
light cameras. These devices photographically record motor vehicle operators who fail to stop at
a red traffic signal. The resultant photos are reviewed by a police officer, and the vehicle operator
is frequently mailed a traffic citation for the red light violation. In authorizing such a procedure,
the Texas Legislature pointedly declared that any violation was a civil matter and not a criminal
conviction, even though a monetary penalty was assessed for the violation.10
Government Is the Victim of Crime As odd as it may initially seem, when Joe Smith
punches Roger Jones in the nose, Roger’s nose may bleed, but it is the State of Texas that is offended.
A governmental body enacts the criminal law for the benefit of society as a whole, not solely for
the benefit of potential individual victims. While the government may hold broad responsibility
for the safety and well-being of the citizenry, it does not normally have legal responsibility for the
misfortunes that befall an individual. Consequently, when a criminal law is violated, the interests
of society as a whole are impacted. This principle is manifested in the justice system in several
ways. First, all criminal prosecutions are filed in the name of the state. A criminal charge based
on the previous example will be styled State of Texas v. Smith. This stylistic form emphasizes that
the action is being brought in the name of the State of Texas. Other jurisdictions follow the same
principle, although slightly different terminology may be used. For example, criminal charges in
California are styled People of the State of California v. Smith while the federal system uses United
States v. Smith.
Second, Texas statutes specify that many legal documents ranging from charge complaints to
indictments conclude with the specific phrase “against the peace and dignity of the state.”11 The Texas
Constitution requires this phrase to appear in all indictments.12 The phrase, which has been ruled to
be absolutely mandatory, reinforces the principle that it is the public, through its government, that is
offended by the criminal behavior.13
Finally, the notion that the sovereign is the victim permits the government to proceed with
a prosecution even with a missing or reluctant complainant. Obviously, no living complainant is
needed in order for the state to initiate a murder prosecution. The rule is generally no different for
other offenses. Likewise, even if a human victim does not wish to pursue the matter, the state may
still file charges. A district attorney may accede to a victim’s wishes to drop charges, particularly
if the case is minor and the testimony of the victim is the primary evidence, but this decision is
based more on practicality than on law. For example, increasingly prosecutors are filing charges in
domestic violence cases even when the victim of the abuse wants the charges dropped. The notion
being that prosecution of all domestic assaults will have a deterring effect on future acts of house-
hold violence.
On the other hand, the public prosecutor (e.g., district attorney) also has the absolute authority
to decide not to prosecute a case. Just as a victim has no legal power to demand a charge be dismissed,
the victim likewise lacks any legal authority to initiate formal court prosecution. The prosecutor pos-
sesses the sole legal discretion to vigorously pursue a case or to totally drop the matter, irrespective of
the victim’s wishes. Not even the courts can force the prosecution of a case that the district attorney
declines to pursue.
Government Prosecutes Case In the American adversarial system, the prosecutors

are government employees, paid with tax dollars, whose compensation is normally not dependent
on which or how many cases they prosecute. In Texas, district attorneys and county attorneys are
popularly elected and are thereby accountable to the electorate.
The office of public prosecutor is largely an American invention. In colonial times, private
lawyers were hired or appointed to prosecute criminal cases.14 For example, during the trial
of the British soldiers involved in the Boston Massacre of 1770, the trial judge appointed a
ro-British prosecutor, while the people of Boston raised money to pay for a second prosecu-
p
tor who was pro-colonists. Today, society recognizes the desirability of a governmental officer
performing the prosecutorial function. As previously noted, the public prosecutor holds broad
discretion as to which cases to pursue and which to drop. While a prosecutor may confer with
the victim prior to accepting a plea bargain offer or a court may order a victim impact study be
conducted before considering sentencing, the human victim has little direct control over the
sanction a defendant receives.
Many persons believe that the human victim of a crime should have a stronger voice in the
prosecutorial process. As a result, Texas, along with many other states, has enacted victim rights
laws. Additionally, a victim rights constitutional amendment is gaining political support. The Texas
victims’ rights statute requires notice of case status, court dates, parole hearings, and the like be
given to the victims of certain violent crimes. The statute permits the victim to provide input to
the pre-sentencing investigation. Despite the expanded rights of crime victims, the district attorney
retains the power to control the overall prosecutorial process.15
The government also absorbs the expense of investigating and prosecuting criminal offenses,
although court costs are often assessed against a guilty defendant. Collection of these costs occurs
most often in misdemeanor cases but rarely after a felony conviction, as most felons either lack the
resources to pay or have little fear of the consequences of not paying.
Judgment Is Payable to the Government The government also extracts the penalty
from the guilty on behalf of society. A convicted defendant may be incarcerated or fined for his
offense, and in a few instances sentenced to death. Often the human victim of the crime—the home-
owner whose residence was burglarized or the driver whose car was stolen—receives nothing as
part of the sentencing of the defendant. All fines and other costs are payable to the government and
society as a whole through its governmental entities funds the cost of incapacitating the offender or
overseeing his or her probation.
RELATIONSHIP OF CRIMINAL AND NONCRIMINAL LAW

The popular notion that law can be divided into criminal and noncriminal (i.e., civil) law is a rela-
tively modern idea. Historically, such a sharp division has not long existed. Early English law was
unconcerned with maintaining a distinction between legal matters of public interest and those of
private concern. This mixture is likely the result of a society governed by an absolute monarch; every
legal matter was the king or queen’s concern, so categorizing the law served little purpose. Even
today, legal circumstances exist that are unclear regarding whether or not the conduct in question is
a crime or a civil matter: Is a parking violation on a state university campus a criminal violation? It is
certainly a violation of a preexisting rule established by a branch of government and is often subject
to a monetary fine. Or how about the recent practice in many large Texas communities of using
cameras to record motorists who ignore red traffic signals? The motorist is sent a notice of the viola-
tion and a demand for payment of a “civil” penalty. Yet, the entire process seems very similar to the
procedure used if one were cited for disorderly conduct or some other petty violation of the penal
code. The point is simply that the technical legal definition of a crime and the popular view of what
constitutes a crime may be somewhat different.
Virtually any criminal offense that involves injury to a person or damage or destruction of
private property can also serve as the basis for a civil suit. Such suits are relatively rare, however,
because many criminal offenders simply lack the financial resources to pay a monetary judgment.
Hence, it would be a waste of time and money to sue the individual who burglarized your home and
stole your television set. The burglar, who likely is sitting in jail, has neither the resources nor the
motivation to satisfy a civil suit judgment.
Civil suits do occur, however, but normally each arises only in the extremes of either
relatively minor offenses or very serious crimes. First, the minor traffic offender who runs the
stop sign and collides with another vehicle may be sued for monetary damages as well as face
a criminal citation. At the other end of the spectrum, wealthy or high profile individuals who
commit offenses—particularly crimes against the person—may find themselves subject not
only to criminal prosecution but also to civil suit. A famous example is the 1995 prosecution of
former football star and actor O.J. Simpson for the murder of his ex-wife and her acquaintance.
Simpson was found not guilty of the criminal offense, but he was sued a year later on behalf
of the ex-wife’s estate and by the parents of the dead acquaintance for the tort of wrongful
death. A multimillion dollar monetary judgment was rendered against him. Since the standard
of proof in a civil suit is less than that required in a criminal case, the two verdicts are not legally
inconsistent. Professional basketball superstar Kobe Bryant suffered a similar fate following
allegations of sexual assault in 2003. Rape charges were dropped when the victim became reluc-
tant to pursue the matter, but Bryant reportedly made a financial settlement of a civil suit filed
by his accuser.16
SOURCES OF CRIMINAL LAW

Common Law of England
When America was colonized, the settlers soon recognized the need for a system of law. Since most
of the newly settled territory was claimed by the British Crown and most early settlers emigrated
from the British Isles, the English system of law was adopted. This system was based on the Common
Law of England.
The Common Law of England is a body of legal rules that developed largely from cus-
tom and case law as supplemented by monarchial decrees and, later, Parliamentary enactments.
Beginning with the Norman Conquest of England in 1066, a new system of government and,
consequently, law began to be established in the British Isles, replacing the crude Anglo-Saxon
system. After a century of political and legal instability due to competing claims to the English
throne, King Henry II, who reigned from 1154 to 1189, set in place a system of legal reform that
relied upon Norman legal principles that emphasized the authority of the judiciary. King Henry
was interested in law, viewing the delivery of justice as one of the key roles of a monarch. While
the early English kings and queens were absolute monarchs, the implementation of their decrees,
as well as the resolution of disputes not covered by direct pronouncements, came to be resolved
by the various judicial tribunals throughout the land. These decisions were based on common
sense and the customs of the country as interpreted by judges. Over time, as reports of these
decisions became collected, a body of consistent law began developing. Utilizing the concept of
legal precedent or stare decisis, in which stability of the law was viewed as more important than
the correctness of the decision, judges began to respect each other’s decisions and rendered their
rulings in accord with prior, similar verdicts. This technique created a consistent set of rules
and a system of legal principles upon which controversies could be resolved with some degree
of predictability. Given the nature of this approach, case law, instead of statutory law, became
the primary vehicle for capturing legal doctrines. This evolving set of laws became known as
the Common Law largely because it developed from cases defining the rights and responsibilities
of the common people as a whole.
With the establishment of the first form of a Parliament in the late thirteenth century, a British
legislative body began supplementing the Common Law. Interestingly, the evolution of the unwrit-
ten Common Law continues today in England though these changes have scant direct influence on
contemporary American law.
One often hears the statement that the early colonists brought the Common Law of England
to America as if a set of books were placed in a trunk and transported across the sea, which is a
misconception because no single set of books contains a precise compendium of all of the Common
Law.17 Rather, the traditions and influence of the rules of law developed under the Common Law
provided a template for the American legal system. In this country’s formative years, whenever a dis-
pute arose over whether certain behavior constituted a crime, for example, American officials would
refer to the crimes known to the Common Law. In fact, many states after the American Revolution
adopted the Common Law crimes as their penal code, initially leaving the definitions of crimes in
their unwritten form.
For some states, such as Florida,18 the unwritten Common Law crimes are considered still
to be in force today when they do not conflict with an offense enacted by the legislature. In these
jurisdictions, a violation of one of the unwritten Common Law offenses is normally a misde-
meanor. A few states (e.g., North Carolina) rely exclusively on statutory crimes, but utilize the
Common Law to provide definitions for the elements of some of the statutory offenses. Thus,
a North Carolina statute declares burglary illegal, but the courts must use the Common Law
definition to determine the elements of the offense.19 Most other states, including Texas, have
by statute explicitly abolished the Common Law crimes altogether, declaring that only offenses
enacted by their respective legislatures are punishable. The federal government, because of its
organic structure, does not enforce the unwritten Common Law crimes.20 But, even in the over-
whelming majority of jurisdictions where the old Common Law crimes are no longer enforced,
the underlying principles of the old English law serve as the primary influence on both the
substantive and procedural criminal law. In Texas, while the Common Law offenses are not part
of the penal law, Common Law rules of court procedure remain in place if not abrogated or
modified by statute.21
Laws of Other Countries

While British law has served as the predominant influence on Texas criminal law, other countries’
legal systems have had minor influence. Because, during its early settlement, Texas was a part of
Spain (1716–1821) and later Mexico (1821–1836), the Spanish and Mexican legal systems have been
somewhat influential. For example, Texas’s territorial jurisdiction extends into adjacent waters
based on the Spanish law of three leagues, not the Common Law three-mile limit used by most
coastal states.22 The Texas tradition of small-town mayors and rural county judges serving as both
administrator and judicial officer likely evolved from the Texas colonial period when each town had
an alcalde, a multifunction government official established by Spanish and later Mexican law. The
alcalde ordinario served as a combination mayor, judge, and chairman of the town council, not
unlike the role of the Texas county judge today.23
Codification Movement
Despite the early adoption of the Common Law crimes, all states subsequently became active
in passing legislation that clearly spelled out in written form the elements of criminal offenses,
so confusion and ambiguity would be minimized. Additionally, by the mid-nineteenth century
a national movement developed to codify all laws, meaning collecting statutes of like topics and
placing them together in organized topical volumes called codes.24 Texas was an early participant
in this codification movement. The state legislature abolished the Common Law crimes and
adopted its first comprehensive written penal code in 1856.25 This “Old Code,” as it is known,
served as the basis of Texas criminal law for nearly 120 years!
State Statutory Enactments

Enactments of the state legislatures constitute the primary source of criminal laws in every state,
including Texas. The Texas Legislature convenes starting from the second Tuesday in January every
two years in odd-numbered years for a period of 140 days. Special sessions are also possible, but they
rarely involve consideration of penal laws.
The Texas Constitution grants to the legislature the power to enact any law on any subject or
in any field that is not explicitly denied to it.26 This rather broad grant of power vests the legislature
with the authority to define crimes and fix penalties.27
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plainly visible as they crawl along the resounding beach at a mile’s
distance. Happily, though hungry for prey, they will not be satisfied.
Swimming would be of no use, but an “Icelandic water-horse”
seldom blunders or makes a false step. But another danger lies in
the masses of ice swept down by the whirling waves, many of which
are sufficiently large to topple over horse and rider.
How the horses are able to stand against such a stream is every
traveller’s wonder; nor would they do so unless they were inured to
the enterprise from their very youth. The Icelanders who live in the
interior keep horses known for their qualities in fording difficult rivers,
and never venture to cross a dangerous stream unless mounted on
an experienced “water-horse.”
The action of the Icelandic horses in crossing a swift river is very
peculiar. They lean all their weight against the current, so as to
oppose it as much as possible, and move onwards with a
characteristic side-step. This motion is not agreeable. It feels as if
your horse were marking time, like soldiers at drill, without gaining
ground, and as the progress made is really very slow, the shore from
which you started seems to recede from you, while that to which you
are bound does not seem to draw nearer.
In the mid-stream the roar of the waters is frequently so great that
the travellers cannot make their voices audible to one another. There
is the swirl of the torrent, the seething of the spray, the crunching of
the floating ice, the roll of stones and boulders against the bottom,—
and all these sounds combine in one confused chaotic din. Up to this
point, a diagonal line, rather down stream, is cautiously followed; but
when the middle is reached, the horses’ heads are turned slightly
towards the current, and after much effort and many risks the
opposite bank is reached in safety.
Lord Dufferin says, with much truth, that the traveller in Iceland is
constantly reminded of the East. From the earliest ages the
Icelanders have been a people dwelling in tents. In the days of the
ancient Althing, the legislators, during the entire session, lay
encamped in movable booths around the place of council. There is
something patriarchal in their domestic polity, and the very migration
of their ancestors from Norway was a protest against the
antagonistic principle of feudalism. No Arab could be prouder of his
high-mettled steed than the Icelander of his little stalwart, sure-
footed pony: no Oriental could pay greater attention to the duties of
hospitality; while the solemn salutation exchanged between two
companies of travellers, as they pass each other in what is
universally called “the desert,” is not unworthy of the stately courtesy
of the gravest of Arabian sheikhs.
It is difficult to imagine anything more multifarious than the cargo
which these caravans import into the inland districts: deal boards,
rope, kegs of brandy, sacks of rye or wheaten flour, salt, soap, sugar,
snuff, tobacco, coffee; everything, in truth, which is necessary for
domestic consumption during the dreary winter season. In exchange
for these commodities the Icelanders give raw wool, knitted
stockings, mittens, cured cod, fish-oil, whale-blubber, fox-skins,
eider-down, feathers, and Iceland moss. The exports of the island in
wool amount to upwards of 1,200,000 lbs. of wool yearly, and
500,000 pairs of stockings and mittens.
ICELANDERS FISHING FOR NARWHAL.
Iceland offers abundant sport to the enthusiast in fishing. The
streams are well supplied with salmon; while the neighbouring seas
abound in seals, torsk, and herrings. The narwhal-fishery is also
carried on, and has its strange and exciting features. The implement
used is simply a three-pronged harpoon, like a trident, with which the
fisherman strikes at the fish as they rise to the surface; and his
dexterity and coolness are so great that he seldom misses his aim.
Numerous works, in English, have been written upon Iceland and
the Icelanders; the most trustworthy are those by Dr. Henderson,
Professor Forbes, Holland, Chambers, and Lord Dufferin. The King
of Denmark visited Iceland in 1874.
CHAPTER VII.
THE ESKIMOS.
he land of the Eskimos is of very wide extent. From Greenland

and Labrador they range over all the coasts of Arctic America
to the extreme north-eastern point of Asia. Several of the
Eskimo tribes are independent; others acknowledge the rule of Great
Britain, Denmark, Russia, and more recently of the United States.
The whaler meets with them on the shores of Baffin Bay, and in the
icy sea beyond Behring Straits; the explorer has tracked them as far
as Smith Sound, the highway to the North Pole; and while they
descend as low as the latitude of Vienna, they rove as far north as
the 81st and 82nd parallels. They are the aborigines of the deserts of
ice and snow, the ancient masters of the Arctic wilderness, and all
Polar America is their long-acknowledged domain. To a certain
extent they are nomadic in their habits; compelled to migrate by the
conditions of the climate in which they live, and forced to seek their
scanty sustenance in a new locality when they have exhausted the
capabilities of any chosen habitat. As Mr. Markham tells us, traces of
former inhabitants are found throughout the gloomiest wastes of the
Arctic regions, in sterile and silent tracts where now only solitude
prevails. These wilds, it is known, have been uninhabited for
centuries; yet they are covered with memorials of wanderers or of
sojourners of a bygone age. Here and there, in Greenland, in
Boothia, on the American coast, where life is possible, the
descendants of former nomads are still to be found.
Arctic discovery, as yet, has stopped short at about 82° on the
west coast, and 76° on the east, of Greenland. These two points are
about six hundred miles apart. There have been inhabitants at both
points, though they are separated by an uninhabitable interval from
the settlements further south; we may conclude, then, that the terra
incognita further north is also or has been inhabited. In 1818 it was
discovered that a small tribe of Eskimos inhabited the bleak west
coast of Greenland between 76° and 79° N. They could not
penetrate to the south on account of the glaciers of Melville Bay;
they could not penetrate to the north, because all progress in that
direction is forbidden by the great Humboldt glacier; while the huge
interior glacier of the Sernik-sook pent them in upon the narrow belt
of the sea-coast. These so-called “Arctic Highlanders” number about
one hundred and forty souls, and throughout the winter their
precarious livelihood depends on the fish they catch in the open
pools and water-ways. Under similar conditions, it is probable that
Eskimo tribes may be existing still further north; or if, as geographers
suppose, an open sea really surrounds the Pole, and a warmer
atmosphere prevails, the conditions of their existence will necessarily
be more favourable.
Before we come to speak of the characteristics of the Eskimos,

we must briefly notice the Danish settlements in Greenland, which
are gradually attracting no inconsiderable number of them within the
bounds of civilization. These are dotted along the coast, like so many
centres of light and life; but the most important, from a commercial
point of view, are Upernavik, Jacobshav’n, and Godhav’n.
Upernavik is the chief town of a district which extends from the
70th to the 74th degree of north latitude, and enjoys the distinction of
being the most northerly civilized region in the world. Its northern
boundary represents the furthest advance of civilization in its long
warfare against the Arctic climate.
UPERNAVIK, GREENLAND.
The town of Upernavik is situated on the summit of a mossy hill
which slopes to the head of a small but sheltered harbour. It contains
a government-house, plastered with pitch and tar; a shop or two;
lodging-houses for the Danish officials; some timber huts, inhabited
by Danes; and a number of huts of stone and turf, intermingled with
seal-skin tents, which accommodate the natives. Its principal
evidences of civilization are its neat little church and parsonage.
The inhabitants are chiefly occupied in fishing and hunting, and in
the manufacture of suitable clothing for the protection of the human
frame against the winter cold. Reindeer, seal, and dog skins are
deftly converted into hoods, jackets, trousers, and boots. The last-
named are triumphs of ingenuity. They are made of seal-skin, which
has been tanned by alternate freezing and thawing; are sewed with
sinew, and “crimped” and fitted to the foot with equal taste and skill.
Dr. Hayes informs us that the Greenland women, not exempt from
the love of finery characteristic of their sex, trim their own boots in a
perfectly bewitching manner, and adopt the gayest of colours. Red
boots, or white, trimmed with red, he says, seemed most generally
worn, though there was no more limit to the variety than to the
capriciousness of the fancy which suggested it. And it would be
difficult to imagine a more grotesque spectacle than is presented by
the crowd of red, and yellow, and white, and purple, and blue-legged
women who crowd the beach whenever a strange ship enters the
harbour.
The population of Upernavik numbers now about two hundred
and fifty souls; comprising some forty or fifty Danes, a larger number
of half-breeds, the remainder being native Greenlanders,—that is,
Eskimos.
DISKO ISLAND, GREENLAND.

In describing one Danish settlement we describe all, for they
present exactly the same characteristics, the difference between
them being only a question of population.
GODHAV’N, DISKO ISLAND, GREENLAND.
Jacobshav’n and Godhav’n are situated on the island of Disko,
which is separated from the west coast of Greenland by Weygat
Strait, and has been described as one of the most remarkable
localities in the Arctic World. The tradition runs that it was translated
from a southern region to its present position by a potent sorcerer;
and an enormous hole in the rock is pointed out as the gully through
which he passed his rope. It is a lofty island, and its coast is belted
round by high trap cliffs, of the most imposing aspect. Near its south-
west extremity, in lat. 69° S., a low rugged spur or tongue of granite
projects into the sea for about a mile and a half,—a peninsula at low
water, and an island at high water,—and forms the snug little recess
of Godhav’n, or Good Harbour. To the north of the bay, in face of
rocky cliffs, which rise perpendicularly from the sea to a height of
2000 feet, lies the town of the same name, which our English
whalers know as Lievely, probably a corruption of the adjective lively;
for the tiny colony is the metropolis of Northern Greenland; and since
the beginning of the present century has been the favourite
rendezvous of the fishing fleets and expeditions of discovery.
Further to the north lies Jacobshav’n, which possesses a
celebrity of its own as one of the most ancient of the Moravian
mission-stations in the north of Greenland. Besides a church, it
boasts of a college for the education and training of natives who
desire to be of service to their fellow-countrymen in the capacity of
catechists or teachers. So great has been the industry, and so well
deserved is the influence of the missionaries, that it is difficult now to
find an Eskimo woman in this part of Greenland who cannot read
and write. Prior to the Danish colonisation of Greenland, the
language of the natives was exclusively oral. Only through the
medium of speech could they represent their simplest ideas; and the
picture-writing of the North American Indians was beyond their skill.
But the missionaries have raised the Eskimo tongue into the rank of
written languages. At Godthaab a printing-press is in full operation,
and has already produced some very interesting historical narratives
and Eskimo traditions.
DANISH SETTLEMENT OF JACOBSHAV’N, GREENLAND.

As is the case with all the Greenland colonies, Jacobshav’n owes
its prosperity to the seal-fishing. Moreover, the Greenland, or “right”
whale, in its annual migrations southward, enters the neighbouring
waters during the month of September, and furnishes employment to
the fishing population.
In the neighbourhood of Jacobshav’n an enormous glacier, one of
the offshoots of the great central mer de glace of Greenland, finds its
way to the sea. Yet the temperature is said to be milder than at
Godhav’n.
The following remarks apply, of course, to those Eskimos who

still lead a nomadic life, and have profited little or nothing by the
Christian civilization of the Danish settlements and Moravian
missions.
Among themselves the Eskimos are known as Inuits, or “men;”
the seamen of the Hudson Bay ships have long been accustomed to
call them Seymos or Suckemos—names derived from the cries of
Seymo or Teymo with which they hail the arrival of the traders; while
the old Norsemen designated them, in allusion to their discordant
shouts, or by way of expressing their infinite contempt, Skraelingers,
“screamers” or “wretches.”
The European feels impelled to pity the hard fate which
condemns them to inhabit one of the dreariest and most inhospitable
regions of the globe, where only a few mosses and lichens, or plants
scarcely higher in the scale of creation, can maintain a struggling
existence; where land animals and birds are few in number; and
where human life would be impossible but for the provision which the
ocean waters so abundantly supply. As they live in a great degree
upon fish and the cetaceans, they dwell almost always near the
coast, and never penetrate inland to any considerable distance.
In the east the Eskimos, for several centuries, have been
subjected to the civilizing influences of the English and the Dutch; in
the west, they have long been under the iron rule of the Muscovite.
In the north and the centre their intercourse with Europeans has
always been casual and inconsiderable. It will therefore be
understood that the different branches of this wide-spread race must
necessarily exhibit some diversity of character, and that the same
description of manners and mode of life will not in all points apply
with equal accuracy to the savage and heathen Eskimos of the
extreme northern shores and islands, the Greek Catholic Aleüts, the
faithful servants of the Hudson Bay Company, and the disciples of
the Moravian Brethren in Labrador or Greenland. Yet the differences
are by no means important, and it may be doubted whether any
other race, living under such peculiar conditions, and extending over
so vast an area, can show so few and such inconsiderable specific
varieties. When one thinks of an Eskimo, one naturally calls up a
certain image to one’s mind: that of a man of moderate stature or
under medium size, with a broad flat face, narrow tapering forehead,
and narrow or more or less oblique eyes; and this image or type will
be found to be realized throughout the length and breadth of Eskimo
America. The Eskimo, generally speaking, would seem to have
sprung from a Mongol stock; at all events, he can claim no kinship
with the Red Indians. Happily for Europeans, if inferior to the latter in
physical qualities, he is superior in generosity and amiability of
disposition.
The Eskimos are sometimes spoken of as if they were dwarfs or
Lilliputians, but such is not the case. They are shorter than the
average Frenchman or Englishman, but individuals measuring from
five feet ten inches to six feet have been found in Camden Bay. Dr.
Kane speaks of Eskimos in Smith Strait who were fully a foot taller
than himself. It is true of the females, however, that they are
comparatively little.
The Eskimos are a stalwart, broad-shouldered race, considerably
stronger than any other of the races of North America. In both sexes
the hands and feet are small and well-shaped. Their muscles are
strongly developed, owing to constant exercise in hunting the seal
and the walrus. They are also powerful wrestlers, and on no unequal
terms could compete with the athletic celebrities of Devon and
Cornwall. Their physiognomy, notwithstanding its lack of beauty, is
far from displeasing; its expression is cheerful and good-tempered,
and the long winter night does not seem to sadden their spirits or
oppress their energies. The females are well made, and though not
handsome, are scarcely to be stigmatized as ugly. Their teeth are
very white and regular; and their complexion is warm, clear, and
good. It is true that it cannot be seen to advantage, owing to the
layers of dirt by which it is obscured; but it is not much darker than a
dark brunette, and as for the dirt—well, perhaps, it is preferable to
cosmetics!
Even in the Arctic World, woman seems conscious of the
influence of her charms, and man seems willing to recognize it. They
plait their black and glossy hair—these Eskimo beauties!—with much
care and taste; and they tattoo their forehead, cheeks, and chin with
a few curved lines, which produce a not altogether unpleasant effect.
From Behring Straits eastward, as far as the river Mackenzie, the
males pierce the lower lip near each angle of the mouth, in order to
suspend to it ornaments of blue or green quartz, or of ivory, shaped
like buttons. Some insert a small ivory quill or dentalium shell in the
cartilage of the nose. They decorate themselves, moreover, with
strings of glass beads; or when and where these cannot be obtained,
with strings of the teeth of the musk-ox, wolf, or fox; hanging them to
the tail of the jacket, or twining them round the waist like a girdle.
The influence of climate upon dress is a subject which we
commend to the notice of art-critics and æsthetic philosophers.
Within the Arctic Circle the problem to be solved is, how to obtain the
greatest amount of protection for the person, without rendering the
costume too heavy or cumbrous; and the Eskimos have succeeded
in solving it satisfactorily. They can defy the rigour of the Arctic
winter, its extreme cold, its severest gales, and pursue their
avocations in the open air even in the dreariness of the early winter
twilight, so cleverly adapted is their garb to the conditions under
which they live. Their boots, made of seal-skin, and lined with the
downy skins of birds, are thoroughly waterproof; their gloves are
large, but defend the hands from frost-bite: they wear two pair of
breeches, made of reindeer or seal-skin, of which the under pair has
the close, warm, stimulating hair close to the flesh; and two jackets,
of which the upper one is provided with a large hood, completely
enveloping the head and face, all but the eyes. The women are
similarly attired, except that their outer jacket is a little longer, and
the hood, in which they carry their children, considerably larger; and
that, in summer, they substitute for the skin-jacket a water-tight shirt,
or kamleika, made of the entrails of the seal or walrus. They sew
their boots so tightly as to render them impervious to moisture, and
so neatly that they may almost be included in the category of works
of art. In Labrador the women carry their infants in their boots, which
have a long pointed flap in front for the purpose.
In a preceding chapter we have spoken incidentally of the Eskimo
huts. These, like the Eskimo dress, are admirably adapted to the
circumstances of the country and the nature of the climate. The
materials used are either frozen snow, earth, stones, or drift-wood.
The snow-hut is a dome-shaped edifice, constructed in the following
manner:—
First, the builders trace a circle on the smooth level surface of the
snow, and the snow gathered within the area thus defined is cut into
slabs, and used for building the walls, leaving the ice underneath to
serve as the flooring.
The crevices between the slabs, and any accidental fissures, are
closed up by throwing a few shovelfuls of loose snow over the
building. Two men are generally engaged in the work; and when the
dome is completed, the one within cuts a low door, through which he
creeps. As the walls are not more than three or four inches thick,
they admit a soft subdued light into the interior, but a window of
transparent ice is generally added. Not only the hut, but the furniture
inside it, is made of snow; snow seats, snow tables, snow couches—
the latter rendered comfortable by coverings of skins. To exclude the
cold outer air, the entrance is protected by an antechamber and a
porch; and for the purposes of intercommunication, covered
passages are carried from one hut to another.
BUILDING AN ESKIMO HUT.
The rapidity with which these snow-huts are raised is quite

surprising, and certainly affords a vivid illustration of the old saying
that “practice brings perfection.” Captain M’Clintock for a few nails
hired four Eskimos to erect a hut for his ship’s crew; and though it
was twenty-four feet in circumference, and five and a half feet in
height, it was erected in a single day.
Much ingenuity is frequently displayed in their construction.
Dr. Scoresby, in 1824, found some deserted huts on the east
coast of Greenland, which showed no little constructive skill on the
part of their builders.
A horizontal tunnel, about fifteen feet in length, and so low that a
person entering it was compelled to crawl on his hands and knees,
opened with one end to the south, while the other end terminated in
the interior of the hut. This rose but slightly above the surface of the
earth, and being generally overgrown with moss or grass, could
scarcely be distinguished from the neighbouring soil. It resembled,
indeed, a large ant-hill, or the work of a mammoth mole! In some
cases the floor of the tunnel was on a level with that of the hut; but
more frequently it slanted downwards and upwards, so that the
colder, and consequently heavier, atmospheric air was still more
completely prevented from mixing too quickly with the warmer air
within. The other arrangements exhibited the same ingenuity in
providing against the inconveniences of a rigorous climate.
From the huts of the Eskimos we pass to their boats.
THE ESKIMO KAYAK.

The kayak or baidar is as good in its way as the light and swift
canoe of the Polynesian islanders. It consists of a narrow, long, and
light wooden framework, covered water-tight with seal-skin, with a
central aperture for the body of the rower. Sometimes the frame is
made of seal or walrus bone. The Eskimo takes his seat in his
buoyant craft, with legs outstretched, and binds a sack—which is
made from the intestines of the whale, or the skins of young seals—
so tightly round his waist, that even in a rolling sea the boat remains
water-tight. Dexterously and rapidly using his paddle, with his spear
or harpoon before him, and preserving his equilibrium with
marvellous steadiness, he darts over the waves like an arrow; and
even if upset, speedily rights himself and his buoyant skiff. The
oomiak, or woman’s boat, consists in like manner of a framework
covered with seal-skins; but it is large enough to accommodate ten
or twelve people, with benches for the women who row or paddle.
The mast supports a triangular sail, made of the entrails of seals,
and easily distended by the wind.
It has been observed that a similar degree of inventive and
executive skill is displayed by the Eskimos in their spears and
harpoons, their fishing and hunting implements. Their oars are
tastefully inlaid with walrus teeth; they have several kinds of spears
or darts, according to the character of the animal they intend to hunt;
and their bows, with strings of seal-gut, are so strong and elastic as
to drive a six-foot arrow a really considerable distance. The
harpoons and spears used in killing whales or seals have long shafts
of wood or bone, and the barbed point is so constructed that, when
lodged in the body of an animal, it remains imbedded, while the shaft
attached to it by a string is loosened from the socket, and acts as a
buoy. Seal-skins filled with air, like bladders, are also employed as
buoys for the whale-spears, being stripped from the animal with such
address that all the natural apertures are easily made air-tight.
Fish-hooks, knives, and spear or harpoon heads, the Eskimos
make of the horns and bones of the deer. In constructing their
sledges, and roofing their huts, they have recourse to the ribs of the
whale, when drift-wood is not available. Strips of seal-skin hide are a
capital substitute for cordage, and cords for nets and bow-strings are
manipulated from the sinews of musk-oxen and deer.
THE ESKIMO OOMIAK.
A strange and deadly antagonism prevails between the Eskimos
and the Red Indians. On the part of the latter it would seem to
originate in jealousy, for the Eskimos are superior in skill, social
habits, general intelligence, personal courage, and strength; on the
part of the former, in the necessity for self-defence and the
provocations they have received from a sanguinary enemy.
Hence, the Indians inhabiting the borders of the Polar World seek
every opportunity of surprising and massacring the inoffensive
Eskimos. Hearne relates that, in the course of his expedition to the
Coppermine River, the Indians who accompanied him obtained
information that a party of Eskimos had raised their summer huts
near the river-mouth. In spite of his generous efforts, they resolved
on destroying the peaceful settlement. Stealthily they made their
approach, and when the midnight sun touched the horizon, they
swooped down, with a frightful yell, on their unfortunate victims, not
one of whom escaped. With that love of torture which seems
inherent in the Red Indian, they did their utmost to intensify and
prolong the agonies of the sufferers; and one aged woman had both
her eyes torn out before she received her death-blow. The scene
where this cruel slaughter took place is known to this day as the
“Bloody Falls.”
Dr. Kane supplies some interesting particulars of a party of

Eskimos with whom he became acquainted during his memorable
expedition. The intimacy began under unfavourable circumstances,
for three of the party had been detected in a scandalous theft, had
attempted to carry off their plunder, were pursued, overtaken, and
punished. Soon afterwards, Metek, the head man or chief, arrived on
the scene, and a treaty of peace was concluded.
On the part of the Inuit, or Eskimos, it ran as follows:—
“We promise that we will not steal. We promise we will bring you
fresh meat. We promise we will sell or lend you dogs. We will keep
you company whenever you want us, and show you where to find
the game.”
On the part of the Kablunah, or white men, it ran as follows:—
“We promise that we will not visit you with death or sorcery, nor
do you any hurt or mischief whatsoever. We will shoot for you on our
hunts. You shall be made welcome aboard ship. We will give you
presents of needles, pins, two kinds of knife, a hoop, three bits of
hard wood, some fat, an awl, and some sewing-thread; and we will
trade with you of these and everything else you want for walrus and
seal meat of the first quality.”
The treaty, says Dr. Kane, was not solemnized by an oath; but it
was never broken.
The Eskimo settlement at Anatoak, lat. 73° N, on the shore of
Smith Strait, near Cape Inglefield, seems to merit description.
The hut or igloë was a single rude elliptical apartment, built not
unskilfully of stone, the outside lined with sods. At its further end, a
rude platform, also of stone, was raised about a foot above the
entering floor. The roof was irregularly curved. It was composed of
flat stones, remarkably large and heavy, arranged so as to overlap
each other, but apparently without any intelligent application of the
principle of the arch. The height of this cave-like abode barely
permitted one to sit upright. Its length was eight feet, its breadth
seven feet, and an expansion of the tunnelled entrance made an
appendage of perhaps two feet more.
The true winter-entrance is called the tossut. It is a walled tunnel,
ten feet long, and so narrow that a man can hardly crawl along it. It
opens outside below the level of the igloë, into which it leads by a
gradual ascent.
Thus the reader will see that the hut at Anatoak was constructed
on the same principles as the huts discovered by Dr. Scoresby.
Time had done its work, says Dr. Kane, on the igloë of Anatoak,
as among the palatial structures of more southern deserts. The
entire front of the dome had fallen in, closing up the tossut, or tunnel,
and forcing visitors and residents to enter at the solitary window
above it. The breach was wide enough to admit a sledge-team; but
the Eskimos showed no anxiety to close it up. Their clothes
saturated with the freezing water of the floes, these men of iron
gathered round a fire of hissing and flaring whale’s blubber, and
steamed away in apparent comfort. The only departure from their
usual routine was suggested probably by the open roof and the
bleakness of the night; and therefore they refrained from stripping
themselves naked before coming into the hut, and hanging up their
dripping vestments to dry, like a votive offering to the god of the sea.
Their kitchen implements were remarkable for simplicity. “A rude
saucer-shaped cup of seal-skin, to gather and hold water in, was the
solitary utensil that could be dignified as table-furniture. A flat stone,
a fixture of the hut, supported by other stones just above the
shoulder-blade of a walrus,—the stone slightly inclined, the cavity of
the bone large enough to hold a moss-wick and some blubber; a

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Texas Criminal Law

Chapter 4 Parties to Offenses 78

Chapter 5 Criminal Homicide 95

Chapter 6 Assault and Sexual Assault 131

Chapter 7 Kidnapping and Related Offenses 178

Chapter 8 Property Destruction Offenses 195

Texas Law of Arson 197

Chapter 9 Theft, Fraud, and Related Offenses 217

Chapter 10 Robbery, Burglary, and Criminal

Chapter 11 Offenses Against Government

Offenses Interfering With Investigation and Prosecution 304

Chapter 12 Public Disorder, Indecency, Health, and

Chapter 13 Intoxication Offenses 370

Chapter 14 Preparatory Offenses and Organized

Chapter 15 General Defenses and Justification 412

Chapter 16 Federal Criminal Law 450

Appendix Using the Texas Penal Code and Court

Glossary of Terms 473

New to this Edition

TABLE 1-1 Historical Development of Criminal Law in Texas

PRIMARY ATTRIBUTES OF A CRIME

Government Prosecutes Case In the American adversarial system, the prosecutors

RELATIONSHIP OF CRIMINAL AND NONCRIMINAL LAW

SOURCES OF CRIMINAL LAW

Laws of Other Countries

State Statutory Enactments

he land of the Eskimos is of very wide extent. From Greenland

Before we come to speak of the characteristics of the Eskimos,

DISKO ISLAND, GREENLAND.

DANISH SETTLEMENT OF JACOBSHAV’N, GREENLAND.

The following remarks apply, of course, to those Eskimos who

The rapidity with which these snow-huts are raised is quite

THE ESKIMO KAYAK.

Dr. Kane supplies some interesting particulars of a party of

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