the advancing strides of civilization and progress, it is not necessary to refer as far back as the ordeals by fire or by water, nor to the sanguinary trial by battle, when the defendant, if innocent, was often murdered, or, if guilty, escaped with the additional crime of having slain his adversary; but it will be amply sufficient to review the conduct of the trial by jury. In the . former history of a criminal trial by jury, every stage of the proceeding was conducted in an unknown language, and so continued, written in a strange hand, with technical abbreviations, as to matters of record, indictments, pleas, verdicts, judgments, etc., until the time of George the Second;1 and at the common law, in capital cases, no prisoner was entitled to a copy of the indictment, or any of the proceedings. Upon the trial of Lord Preston, 1690, a copy was urged, and he desired to have it argued by counsel, but the court unanimously refused; "it being a point that would not bear debate." It was also refused to Colonel Sidney and Sir Harry Vane. In the early administration of the criminal law, the ancient justiciarii in intinere made their circuit round the kingdom, for the purpose of trying causes and criminals, only once in seven years; in which interval, by the common calculation of lives, it is probable that, exclusive of the distresses and consequent depopulation of families, one half of the wretches under suspicion and in custody died in dungeons." Even as late as the reign of Charles the Second, it was a common practice for the judges, upon their circuits, to impose arbitrary fines upon grand juries, for supposed concealments and non-presentments; which was a most dangerous exertion of power, tending to the encouragement of ill-founded accusations.3 And, as an additional severity, the use of counsel was permitted only on the part of the prosecution; because, to use the language of Sir E. COKE, "the testimony and proof of the crime ought to be so clear and manifest that there can be no defence of it;" a humane reason, which however existed, so far as the sufficiency and clearness of testimony was concerned, in speculation only; for the first and most essential principles of evidence seemed to be either unknown or wholly disregarded. 12 Geo. II., ch. 26. • Prin. of Penal Law, 178. Id.; Vaughn's Rep., 153; 2 Hale's P. C., 160. • 3 Inst., 29. BOOK II. OF INDICTABLE OFFENCES. CHAPTER I.-OF FELONIES. II.-OF MISDEMEANORS. III-OF THE INDICTMENT. IV. OF CRIMINAL EVIDENCE. OF INDICTABLE OFFENCES. BLACKSTONE says that a crime or misdemeanor is an act committed or omitted in violation of a public law, either forbidding or commanding it. This general definition comprises both crimes and misdemeanors, which, properly speaking, are mere synonymous terms; though, in common usage, the word "crimes," is made to denote such offences as are of a deeper and more atrocious dye, while smaller faults, and omissions of less consequence, are comprised under the gentler names of "misdemeanors" only.1 The knowledge of this branch of jurisprudence, which teaches the nature, extent and degrees of every crime, and adjusts to it its adequate, and necessary penalty is of the utmost importance to every individual in the State; for (as a very great master of the crown law has observed, upon a similar occasion),2 no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct should tempt a man to conclude, that he may not, at some time or other, be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the 'Black. Com., Bk. IV, § 5. Sir Michael Foster. numberless unforseen events which the compass of a day may bring forth, will teach us (upon a moment's reflection), that, to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a willful disobedience may expose us, is a matter of universal concern.1 The use of the words crime, offence, felony and misdemeanor, is far from uniform even among legal writers. As proper a definition of the term crime, as applicable to the laws of this State, as has been given by any of the writers upon the subject of criminal jurisprudence, is contained in the draft of a penal code, submitted to the Legislature of this State, and is as follows: A crime or public offence is an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments: 1. Death. 2. Imprisonment. 3. Fine. 4. Removal from office. 5. Disqualification to hold and enjoy any office of honor, trust or profit under this State.2 By the Revised Statutes of this State, the word "crime" or "offence" when used in any statute, shall be construed to mean any offence for which any criminal punishment may by law be inflicted.3 And whenever the term "infamous crime" is used in any statute, it shall be construed as including every offence punishable with death or by imprisonment in a State prison, and no other.1 Several of our statutes, which make crimes punishable in the courts, do not give a definition of the offence, but they are assumed to be well known as offences at the common law, and, under the general term denoting the offence, it is declared by law to be a crime, and the mode of trial and measure of punishment are alone prescribed by statute. If questions arise in such cases, as to what constitutes the offence, reference is to be had to well established definitions, sanctioned by books of authority, and adapted by long usage, and with reference to which it may be supposed our Legislatures have acted in passing the law punishing the offence;1 and in all cases where our Legislature has not provided rules for the determination of our judges, the common law must essentially prevail. What is meant by the common law above referred to, and to which reference is frequently made, may be explained as follows: The lex non scripta, or unwritten law, includes not only the general customs, or the common law properly so-called, but also the particular customs of certain parts of the kingdom of England. The term lex non scripta, or laws not written, is used in contra-distinction of the lex scripta, or written or statute law, and is not to be understood as if all those laws were merely oral, or communicated from the former ages solely by word of mouth; but the common law comprises the monuments and evidences of the English legal customs as contained in the records of the several courts of justice, in books of reports, and judicial decisions, and in the treatises of the learned sages of the profession, handed down to us from the times of the highest antiquity; and therefore these parts of our law are styled leges non scripta, or unwritten laws, because their original institution and authority are not set down in writing as acts of parliament are, but they receive their binding power and the force of laws by long and immemorial usage and by their universal reception throughout the kingdom of England.2 Macauley, in his history of England, says, that the sources of the noblest rivers, which spread fertility over continents and bear richly laden fleets to the sea, are to be sought in wild and barren mountain tracts, incorrectly laid down in maps, and rarely explored by travellers; and to such a tract the history of England, during the thirteenth century, may not unaptly be compared; sterile and obscure as is that portion of the English annals, it was then that the common law rose to the dignity of a science and rapidly became a not unworthy rival of the imperial jurisprudence. What many people, unlearned in the law or forgetful of the lessons taught by history, regard as irrational obstacles and impediments to the due administration of public justice, are simply monuments of the common law, which, in its wisdom and regard for the rights and liberties of the subject, it . has successively erected as barriers between the crown officers and the humblest citizen. The law, in its just interference between the despotism of crowned heads and the struggles of a people who wrenched from a monarch's grasp a Magna Charta, a bill of rights, and habeas corpus, has been compelled to observe many forms for the protection of liberty which, to those who have not made the criminal law a study, may appear absurd; but it is better that a criminal may now and then escape a deserved punishment, by an adherence to these rules, than that a reverence for these rules should be departed from, and the criminal law administered with such oppressiveness that the people should be in danger of losing those liberties which cost them so many struggles to obtain. By the Constitution of this State, such parts of the common law of England, as were in force in the colony of New York on the 19th day of April, 1775, were retained in the old Constitution of 1777, and the same were by the new Constitution, except where they had been repealed or altered, or were repugnant to the Constitution, continued as the law of this State, subject to such alterations as the Legislature should make concerning the same. The colonists have been considered as bringing with them only such parts of the law of the mother country as were applicable to their own situation, and the particular laws and customs of special districts of England, were, therefore, never adopted by them.1 Offences which may be made the subject of indictment, were by the common law divided into treasons, felonies, and misdemeanors, but by our law they are classified into felonies and misdemeanors. These two subdivisions will be taken up and discussed separately in the two following chapters. |