infer the non-indictability of such offences at common law because they are indictable in England only under statutes which we have not re-enacted. The want of English common law authority in many cases of this class is attributable not to the non-indictability of the offences at common law,' but to the fact that statutes imposing severe penalties on the offence, and absorbing by their terms the common law, were passed before common law affirmations of the indictability of the offence were reported. As said by the Supreme Court of Vermont, in a case adopted afterward in New York, "the English statutes were so ancient, and the punishment so severe, that they were, of course, resorted to, and the common law thus lost sight of, though the statutes were intended as a mere increase of its penalties.'

992

§ 17. It has been held by us, therefore, in application of the reasoning just stated, that whatever, in the first place, is provocative of public disturbance; or, in the second place, consists of malicious injury to another's property in such a way as to provoke violent retaliation; or, in the third place, constitutes a public scandal or indecency," is indictable in this country, although in England the offence is punishable now only by statute, or in the ecclesiastical courts.

(1) Acts, therefore, provocative of public disturbance are indictable, though there be no English precedent for the indictment.

felony; Com. v. Randolph, 146 Pa. 83, 1892; State v. Bowers, 35 S. C. 262, 1892; even though the solicitation is ineffectual and the crime is not committed; Com. v. Flagg, 135 Mass. 545, 1883; but a solicitation to commit a misdemeanor is not indictable; Smith v. Com., 54 Pa. 209, 1867.

There is no public wrong that is not the subject of criminal action at common law; e. g., it has been held indictable unlawfully and injuriously to carry a child infected with the smallpox along the public streets; R. v. Vantandillo, 4 M. & S. 73, 1815; R. v. Burnett, 4 M. & S. 272, 1815; to show a monster for money; Herring v. Walround, 2 Cha. Ca. 110, 1683; to put combustible materials on board a ship without giving notice of the contents; 1 Russell, Crimes, 441; William v. East India Co., 3 East, 192, 201, 1802; to overwork children in a factory; 2 Twiss's Life of Eldon, 36; to change contents of samples, so as to make a cargo appear of better quality than it is; R. v. Vreones, 1 Q. B. 360; s. c. 17 Cox C. C. 267, 1891; and to solicit another to commit a 1468.

2 State v. Simpson, 2 Hawks, 460, 1823; State v. Briggs, 1 Aikens, 226, 1826; State v. Cawood, 2 Stewart, 360, 1830; Loomis v. Edgerton, 19 Wend. 419, 1838. See opinion of Shaw, C. J., in Com. v. Chapman, 13 Metc. 68, 1847.

S.

See 2 1553-1557.

See, on this point, 7 Law Rep. N. 88, 89, and infra, ? 1066.

See infra, ?? 1410 et seq., 1432, 1446,

Disturb

the public

dictable at common

weapons,

4

Hence it has been held indictable to drive a carriage through a crowded street in such a way as to endanger the lives of ances of the passers-by;1 to disturb a congregation when at repeace in- ligious worship; to go about armed with dangerous and unusual to the terror of citizens ;3 to raise a law. liberty-pole in the year 1794, as a notorious and riotous expression of ill-will to the government; to tear down forcibly and contemptuously an advertisement, set up by the commissioners, of a sale of land for county taxes; to agree to fight, though no fight takes place; to break into a house in the day or night time and disturb its inhabitants; to violently disturb a town meeting, though the parties engaged were not sufficient in number to amount to riot; to attempt to kidnap another; and, in short, to do any act which may create a public disturbance, provided that such be the natural consequence of the act.

So of malicious

§ 18. (2) It has also been generally held in this country that acts of malicious mischief, when producing a wanton injury to another's property, so as to provoke violent remischief. taliation, are indictable. Thus it has been held indictable to maliciously destroy a horse,10 a cow," a steer," or other beast, which may be the property of another; 13 to be guilty of wanton

1 U. S. v. Hart, 1 Peters C. C. 390, 1817. See infra, 8 1536 et seq.

2 State v. Jasper, 4 Dev. 323, 1833. Infra, 20, 1566 a.

3 State v. Huntley, 3 Ired. 418, 1843. See, however, Simpson v. State, 5 Yerg. 356, 1833, Peck, J., dissenting.

Penns. v. Morrison, Addis. 274, 1795. See Adams's Gallatin, 123 et seq. But see, also, Allegheny v. Zimmerman, 95 Pa. 287, 1880, where the court appears to ignore the case in Addison.

9 Infra, 590. State v. Rollins, 8 N. H. 550, 1837.

10

Infra, 1066 et seq. Resp. v. Teischer, 1 Dallas, 335, 1788; State v. Council, 1 Overt. 305, 1808; though this case has since been denied; Shell v. State, 6 Humph. 283, 1845; Taylor v. State, 6 Humph. 285, 1845.

11 Com. v. Leach, 1 Mass. 50, 1804; People v. Smith, 5 Cowen, 258, 1825. 12 State v. Scott, 2 Dev. & Bat. 35, 1836; Whart. Prec. 213.

13 The test of indictability is whether or not the offence tends to provoke a

Penns. v. Gillespie, Addis. 267, breach of the peace. Loomis v. Edger

1795.

ton, 19 Wend. 419, 1838. See the

6 State v. Hitchens, 2 Harring. 527, various decisions in State v. Wheeler, 1832. Infra, 1768.

Com. v. Taylor, 5 Binney, 277, 1812; Hackett v. Com., 15 Pa. 95, 1850.

3 Vt. 344, 1830; Kilpatrick v. People, 5 Denio, 277, 1848; Illies v. Knight, 3 Tex. 312, 1849; Henderson's Case, 8 Gratt. 708, 1852. Destroying har

8 Com. v. Hoxey, 16 Mass. 385, ness has been held to be malicious

1820. Infra, 1556.

mischief. People v. Moody, 5 Park.

6

cruelty to animals in general, when the essential ingredient of malice toward the owner is present,' or the offence is a public scandal; to cast the carcase of an animal in a well in daily use; to maliciously poison chickens, or maliciously break windows; to mischievously set fire to a number of barrels of tar; to girdle or otherwise maliciously injure trees kept either for use or ornament, to administer deleterious substances; to discharge a gun with the intention of annoying and injuring a sick person in the immediate vicinity; to break into a room with violence for the same purpose; to go armed upon the porch of another man's house and from thence shoot and kill a dog of the owner of the house, lying in the yard, in the absence of the male members of the family, and to the terror and alarm of the females in the house; 10 though it is not an indictable offence to remove a stone from the boundary line between the premises of A. and B. with the intent to injure B.; " nor to shave and crop the hair from a mare's tail in a stable ;" nor to frequent a neighbor's house, and grossly abuse his family, if there be no assault.13

§ 19. (3) On the same reasoning it has been held to be indictable to do an act which is a great scandal or public insult to the

Crim. Rep. 568, 1864; but see Shell v. Case, 3 Greenleaf, 177, 1824; and see State, 6 Humph. 283, 1845. discussion, infra, 22 1067 et seq.

1 State v. Briggs, 1 Aikens, 226, 1826. See 7 Law Rep. N. S. 89, 90.

'U.S. v. Logan, 2 Cranch C. C. 259, 1821; U.S. v. Jackson, 4 Cranch C. C. 483, 1834.

7

* Infra, & 610. Com. v. Stratton, 114 Mass. 303, 1873; People v. Blake, 1 Wheeler C. C. 490, 1823; see, however, at common law, R. v. Hanson, 2 C. & K. 912, 1849; s. c. 4 Cox C. C.

3 State v. Buckman, 8 N. H. 203, 138; R. v. Walkden, 1 Cox C. C. 282, 1836.

1788.

• Resp. v. Teischer, 1 Dallas, 335, The better opinion now is that, to make such an offence indictable, it must be done either secretly and in the night-time; Kilpatrick r. People, 5 Denio, 277, 1848; or in such a way as to provoke a breach of peace; State v. Phipps, 10 Ired. 17, 1848.

5 State v. Simpson, 2 Hawks, 460, 1823.

* Com. v. Eckert, 2 Browne, (Pa.) 249, 1812; Loomis v. Edgerton, 19 Wend. 419, 1838; per contra, Brown's

1845; R. v. Dilworth, 2 M. & Rob. 531, 1843. Infra, 610.

› Com. v. Wing, 9 Pick. 1, 1829. 9Com. v. Taylor, 5 Binney, 277,

1812.

10 Henderson's Case, 8 Gratt. 708, 1852.

11 State v. Burroughs, 2 Halst. 426, 1802. Or to remove B's tree, see Com. v. Powell, 8 Leigh, 719, 1857.

12 State v. Smith, 1 Cheves, (S. C.) 157, 1840; contra, Boyd v. State, 2 Humph. 39, 1840.

13 Com. v. Edwards, 1 Ashmead, 46,

1823.

And so of public scandal

and inde

cency.

8

community. Under this head it has been held indictable to cast a dead body into a river without the rites of Christian sepulture; to be guilty of eaves-dropping; to knowingly sell noxious food; to sell a wife; to disinter a dead body without proper authority; to give more than a single vote at an election;' to be guilty of individual offensive drunkenness, or notorious lewdness,' though on this point the better rule is that, to make the offence indictable, it must be such as to shock and insult, not an individual, but the community;10 to indulge publicly in profane swearing," or in loud and obscene language, so as to draw together a crowd in a thoroughfare," though the offence be not laid as a nuisance;13 and, in fine, to commit any act which from its nature must scandalously affect the morals and health of the community." § 20. It has sometimes been said that Christianity is part of the common law of the land,15 and from this it has been argued that the State is in some way bound to punish by ligious not indictment offences against Christianity. Christianity, undoubtedly, has affected the common law in the United

Offences exclusively re

See infra generally, 22 1410 et seq. 2 Kanavan's Case, 1 Greenleaf, 226, 1821. Infra, 1432 a. But it is not a misdemeanor to burn a dead body, unless so done as to cause a public nuisance, or in order to prevent the coroner from holding an inquest. R. v. Price, 12 Q. B. D. 247; s. c. 15 Cox C. C. 389, 1884; R. v. Stephenson, 13 Q. B. D. 331; s. c. 15 Cox C. C. 679, 1884.

3 State v. Williams, 2 Tenn. 108, 1808; Com. v. Lovett, 6 Penn. L. J. 226, 1831. See infra, & 1446.

'Com. v. Silsbee, 9 Mass. 417, 1812.
Smith v. State, 1 Humph. 396,

1839.

9 State v. Moore, 1 Swan, 136, 1851; Brooks v. State, 2 Yerg. 482, 1831; State v. Rose, 32 Mo. 560, 1862. Infra, 1456.

10 Infra, 1446. State v. Waller, 3 Murphey, 229, 1819.

11 Infra, 1442-4; State v. Kirby, 1 Murphey, 254, 1809; State v. Ellar, 1 Dev. 267, 1827; State v. Graham, 3 Sneed, 134, 1855; State v. Pepper, 68 N. C. 259, 1873. See State v. Jones, 9 Ind. 38, 1848.

12

Infra, 1432; State v. Appling,

• State v. Smith, 3 Hawks, 378, 1824; State v. Norton, 2 Ired. 40, 1841. 5 Or a girl for prostitution; R. v. 25 Mo. 315, 1857. Delaval, 3 Burr. 1434, 1763.

R. v. Lynn, 2 T. R. 733; s. c. 1 Leach, 497, 1788; R. v. Vaim, 2 Den. C. C. 325; s. c. 8 Eng. L. & Eq. 596, 1851; R. v. Sharpe, 7 Cox C. C. 214; s. c. 40 Eng. L. & Eq. 581, 1857; Com. v. Cooley, 10 Pick. 37, 1830. Or to sell the body of a dead convict for dissection. R. v. Cundick, D. & R. N. P. C. 13, 1822. See infra, 1432 a.

13 Barker v. Com,, 19 Pa. 412, 1852; Bell v. State, 1 Swan, 42, 1851.

14

Resp. v. Teischer, 1 Dall. 335, 1788; People v. Smith, 5 Cow. 258, 1825. E. g., the exhibition of an obscene picture. Com. v. Sharpless, 2 S. & R. 91, 1815.

15 People v. Ruggles, 8 Johns. 290, 1811; Updegraph v. Com., 11 S. & R. 394, 1824; State v. Chandler, 2 Har

1

States, in the following important particulars: (1) In most jurisdictions we have adopted the principles of the canon law in relation to matrimony and to succession. The rules which the English ecclesiastical courts imposed in this connection we have in a large measure accepted as binding us; and in several States we have recognized as indictable certain offences, such as adultery and fornication, which in England can only be prosecuted in the ecclesiastical courts. (2) We have also, adopting the ethical rules of Christianity, as distinguished from those of heathendom, made indictable breaches of domestic duty which were not criminally punishable by the old Roman law. (3) Witnesses, unless they have conscientious scruples, or believe another form of oath more binding, are sworn as a rule on the Christian Bible. But beyond this we have not gone. We make blasphemy of Christianity indictable; but this is because such blasphemy is productive of a breach of the public peace, and not because it is an offence against God. We treat a disturbance of Christian worship as indictable when such disturbance amounts to a private assault or to public disorder; but we give the same protection to non-Christian assemblies. And in no State does the government interfere to prosecute offences consisting of a denial of Christian dogma, or a rejection of Christian sanctions. Nor in any State is Christianity in such sense part of the common law that the State can determine what are the dogmas of Christianity. That which is part of the common law can be changed by statute; but as the dogmas of Christianity are beyond the reach of statute, we must hold that they are not part of the common law of the land."

ring. 553, 1837; Vidal v. Girard, 2 How. Richards, 38 Me. 379, 1854; Com. v. (U.S.) 127, 198, 1844; Pringle v. Napanee, 14 Can. L. J. 219, 1878. But see Bloom v. Richards, 2 Ohio, 387, 1853. 1 Grisham v. State, 2 Yerg. 589, 1831. See infra, 2 1717, 1741.

4

3 See infra, 1556.

Jeandell, 2 Grant, (Pa.) 506, 1859;
Lindenmuller v. People, 33 Barb. (N.
Y.) 548, 1861; Board of Education v.
Minor, 23 Ohio, 211, 1872; State v.
Pepper, 68 N. C. 259, 1373. See R.
v. Carlile, 3 B. & Ald. 161, 1819; R.
v. Waddington, 1 B. & C. 26, 1822;
Story's Misc. Writings, 451; 2 Life of
Story, 431. Infra, & 1431.

5 R. v. Foote, 48 L. T. (N. S.) 733, Chapman v. Gillett, 2 Conn. 40, 1883, cited infra, 22 1605, 1627; 13 1816; People v. Porter, 2 Park. Cr. Alb. L. J. 366; 20 Alb. L. J. 265, Rep. 14, 1823; Com. v. Dupuy, Bright. 285; Sedgwick, Stat. & Const. Law, N. P. 44, 1831; Bloom v. Richards, 14, and cases cited; Cooley, Const. 2 Ohio, 387, 1853; Donahoe v. Lim. (6th ed.) 579. See, also, Art. XI.