guarded against with due caution.(k) But if the defect in the amount had been owing to a false vessel for measuring, A. would have been indictable. So was S., who delivered a quantity of coals, to his knowledge weighing 14 cwt., he falsely and fraudulently representing that the quantity he had delivered weighed 18 cwt., and thereby obtaining the price of 18 cwt.(/) It is often of the utmost importance to determine whether a particular proceeding is a criminal or a civil proceeding. Thus, the evidence of the defendant may be required; and this is not allowed to be given in criminal, though of course it is in civil, trials. The question arose on an information for the recovery of penalties for smuggling, under a particular statute.(m) The true test is whether or not the infliction of punishment follows on the result being unfavorable to the defendant. If the end of the proceeding is that the defendant is required to pay a sum of money, the question will resolve itself into the form, whether the fine is a debt or a punishment.(n) The moral nature of an act is an element of no value in determining whether it is criminal or not. On the one hand, an act may be grossly immoral, and yet it may not bring its agent within the pale of the criminal law—as in the case of adultery. "Human laws are made, not to punish sin, but to prevent crime and mischief." (0) On the other hand, an act perfectly innocent, from a moral point of view, may render the doer amenable to punishment as a criminal. To take an extreme example: W. was convicted on an indictment for a common nuisance, for erecting an embankment, which, although it was, in some degree, a hindrance to navigation, was advantageous, in a greater degree, to the users of the port.(p) Here the motive, if not praiseworthy, was at least innocent. The fact that the mo- (k) R. v. Wheatley, 2 Burr. 1125. (1) R. v. Sherwood, 26 L. J. (M. C.) 81. tive of the defendant was positively pious and laudable has not prevented a conviction.(9) This forces upon our notice a division of crimes into mala in se and mala quia prohibita; a distinction which is of little practical importance in our English system, and which must necessarily vary with the standard of good and bad.(r) There will always be some crimes which naturally take their place in the one class or the other; for example, no one will hesitate to say that murder is malum in se, or that the secret importation of articles liable to custom is merely malum quia prohibitum; but between these offenses there are many acts which it is difficult to assign to their proper class. Some acts have been recognized as crimes in the English Law from time immemorial, though their punishment and incidents may have been affected by legislation. Thus murder and rape are crimes at common law. In other cases, acts have been pronounced crimes by particular statutes, which have also provided for their punishment, e. g., offenses under the bankruptcy laws. [There is no common law jurisdiction of crimes in Ohio. This was declared by the supreme court of the state, in Key v. Vattier, 1 Ohio, 132, and in many subsequent cases. There is no crime, or punishment, or criminal procedure in Ohio other than what has been defined or prescribed by statute. Misprisions, attempts, conspiracy, and all accessorial offenses are substantive crimes, so far as they have been declared by statute; and, in the absence of statute, are not punishable. The common law is used, however, to define words used in the statutes. The same rule prevails in Indiana; (1) and in Iowa.(2) In Indiana and Iowa the rule is prescribed by statute. But the states generally hold that common law crimes are indictable, and common law punishments can be imposed by courts having general crim (9) R. v. Sharpe, 26 L. J. (M. C.) 47. (r) Austin, 590. (1) Beals v. The State, 15 Ind. 378; State v. O. & M. R. R. Co., 23 Ind. 362. (2) Estes v. Carter, 10 Iowa, 400. inal jurisdiction, except so far as the common law has been repealed or modified by statute. Hence, an indictment for conspiracy is good in Minnesota, though there is no mention of conspiracy in the statutes (1) In Scotland, the common law power of courts extends to declaring and punishing as crimes, acts not made criminal by statute, and which have never before been indicted.(2)] In treating of the criminal law, or the pleas of the crown,(s) the subject naturally divides itself into two portions. The first, dealing with crimes generally, and the various individual crimes, their constituents, their differences, appropriate punishments, and other incidents, may be termed The Law of Crimes. The second, dealing with the machinery by means of which these crimes are prevented, or, if committed, by means of which they meet with their punishment, may be termed The Law of Criminal Procedure. (s) So called because the king is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is, therefore, in all cases, the proper prosecutor for every public offense. 4 Bl. 2. (1) State v. Pulle, 12 Minn. 164. (2) Greenhuff's case, 2 Swinton, 236, cited 1 Bishop Crim. L., Ed. 1868, 18. CHAPTER II. DIVISIONS OF CRIME. Crime-Offense. These terms are sometimes used synony mously of the whole of illegal acts which entail punishEach of them, however, has sometimes a narrower signification; and in this sense they are opposed to each other, and divide between them the whole field of acts which each in its wider sense covers. The latter use is that which confines the term "offense" to acts which are not indictable, but which are punished on summary conviction; while "crime" is restricted to those which are the subjects of indictment. [The state courts have general jurisdiction over crimes under the common law or under statutes of the state, committed within the state. The federal courts have no common law jurisdiction over crime, but, under acts of congress, have general jurisdiction over crime committed upon American vessels upon the high seas (such vessel being American territory, and yet not within the limits of any county), or committed within the District of Columbia, or any other place where the United States have exclusive jurisdiction. Murder, manslaughter, mayhem, rape, bigamy, arson, larceny, and receiving stolen goods, if committed in any place over which the United States have exclusive jurisdiction, are prosecuted in the United States Circuit Courts. The federal courts have jurisdiction also over treason and other crimes against the general government; crimes affecting the maritime and commercial jurisdiction of the general government; perjury before a federal tribunal, and other crimes affecting the administration of justice by the federal tribunals; forgery of United States securities, or of other papers issued by the government, or to be used in obtaining money from the United States; crimes affecting coinage, mails, public revenue, bribery of officers under the government, and other crimes against the operations of the government; criminal official misconduct of officers of the general government, and crimes under the constitution of the United States against the elective franchise or civil rights. Military and naval offenses are prosecuted before courts martial, and crimes in the territories before territorial courts.] Indictable crimes.-All treasons, felonies, and misdemeanors, misprisions of treason and felony, whether existing at common law or created by statute, are the subjects of indictment. So also are all attempts to commit any of these acts;(u) and even an intention to commit high treason is indictable. Further, if a statute prohibits a matter of public grievance, or commands a matter of public convenience (such as the repairing of highways or the like), all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute does not manifestly seem to exclude this mode of proceeding.(/) (1) But it is otherwise, if the rights which are regulated are merely private If the statute, on which the indictment is framed, is repealed, no proceedings can be taken, provided at least the prisoner has not pleaded.(x) Misprision. In general, this term signifies some neglect or contempt, especially when a person, without assenting thereto, knows of any treason or felony and conceals it.(y) But it is also applied to every great misdemeanor which has no certain name given to it in the law; for example, the maladministration of public officers. The former kind is sometimes termed negatire, the latter positive, misprision. The main classification of indictable crimes is threefold -Treason, Felony, Misdemeanor-though "treason" is strictly included in the term "felony." Felony-Misdemeanor.-It will be remembered that, in contrasting crimes and civil injuries, we found that there (u) v. p. 19. (x) R. v. Denton, 21 L. J. (M. C.) 207. (e) 2 Hawk. e 27. 8. 4. (y) v. pp. 54, 87. (1) See p. 5, as to states where there is no indictable crime but such as is defined by statute. |