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common law are
§ 21. Offences at common law are divided into three heads : Offences at treasons, felonies, and misdemeanors. In England, under
the head of treason were embraced, first, under the name treasons, of high treason, the compassing of the king's death, the felonies, and misde- comforting of the king's enemies, the counterfeiting of
the privy seal, the forging of the king's coin, and the slaying of the chancellor, or either of the king's justices; and secondly, under the name of petit treason, such offences as were imputable in private life to the same principle of treachery and disloyalty as led, in the affairs of State, to the compassing the sovereign's death ; comprising the slaying, by a wife, of her lord and husband, and by an ecclesiastic of his ordinary. In this country, however, petit treason as a distinct class of offences is no longer recognized, the crimes composing it having sunk into a place among homicides; and high treason, under the constitutions both of the Federal union and of the several States, is limited to the levying war against the supreme authority, or adhering to its enemies, giving them aid and comfort.' § 22. Felonies, in England, as distinguished from misdemeanors,
comprised originally every species of crime which occa
sioned the forfeiture of lands and goods; but though crimes subject to this distinction, originally based on the supposed heinous
ness of the crime, is still nominally recognized, its continuance, while conducing to much technical difficulty, is productive of no good, and its abolition is only a question of time. At
of the treaty with Tripoli of January “There is no lawyer,” says Mr. J 3, 1797 ; U.S. Treaties (ed. of 1873), S. Mill, "who would undertake to p. 838; viii. U. S. Stat. at Large tell what a felony is, otherwise than (Foreign Treaties, Peters' ed.), 155; by enumerating the various kinds of vi. Marten's Rec. de Traités, 298. offences which are so called."
In State v. Brooksbank, 6 Ired. 73, In most, if not all, of the United 1845, it was held that Sabbath-break- States the word felony has, either by ing is not an offence at common law. statute or judicial construction, acBut this can only be true as to such quired the meaning of a crime punish“Sabbath-breaking " does not able by death or imprisonment in a amount to a nuisance. See contra, State prison. State v. Felch, 58 N. State v. Parker, 91 N. C. 650, 1884. H. 1, 1876 ; State v. Waller, 43 Ark. 1 Infra, 27 1782 et seq.
381, 1884; State v. Lehr, 16 Mo. App. ? See Amos on Jurisprudence (Lon- 491, 1885; Rafferty v. State, 91 Tenn. don, 1872), 302; Steph. Crim. Law, 655, 1891; In re Stevens, 52 Kans. 56, 57, 105–110; Lyford v. Farrar, 56, 1893, and cases cited ; People v. 31 N. H. 314, 1855; Shay v. People, Hughes, 137 N. Y. 29, 1893; Benton 22 N. Y. 317, 1860.
v. Com., 89 Va. 570, 1893; State v.
common law, in addition to the crimes more strictly coming under the bead of treason, the chief, if not the only felonies, were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. By statutes, however, running from the earliest period, new felonies were, from time to time, created ; till finally, not only almost every heinous offence against person or property was included within the class, but it was held, that whenever judgment of life or member was affixed by statute the offence to which it was attached became felonious by implication, though the word felony was not used in the statute. In this country, until recently, the common law classification obtained; the principal felonies being received as they originally existed, and their number increased as the exigencies of society prompted;' though in the federal courts non-capital offences have been held to be felonies only when made so by statute expressly or by implication. In several of the States all offences subject to death or imprisonment are made felonies; all others are misdemeanors. In some States the distinction is abolished absolutely. In most of the others it exists only so far as to make it requisite, in indictments for felonies, to use the term "feloniously;"4 and to give certain privileges as to challenges, as to joinder of counts, and as to seclusion of jury. But it is impossible not to be amazed at a system which made perjury a misdemeanor, and larceny a felony; which, while it made it a felony to steal five shillings, made it only a misdemeanor to conspire to rob a bank.
§ 22 a. The question as to what are “infamous crimes" is now of interest principally because of the clause in the federal constitution which provides that all crimes not infamous may be prose
Harr, (W. Va.) 17 S. E. Rep. 794, Errors and Appeals, that the term 1893. It is not the actual sentence, felony was not known to the laws of but the possible one, that determines Louisiana, was an unadvised dictum, the grade of the offence; People v. and not law. State v. Rohfrischt, 12 Hughes, supra; and accordingly the La. An. 382, 1857. infliction of a permissible less punish- 2 U. S. v. Coppersmith, 1 Cr. Law ment will not reduce the offence to a Mag. 741; s. C. 2 Flip. 546, 1880. misdemeanor. State v. Melton, 117 3 See State v. Smith, 32 Me. 369, Mo. 618, 1893. No crime is a felony 1851; People v. Park, 41 N.Y.21, 1869; unless it was such at common law, or Randall v. Com., 24 Gratt. 644, 1878; has been declared such by statute. Weinzorpflin v. State, 7 Blackf. 186, State v. Murphy, 17 R. I. 698, 1892. 1844; Nichols v. State, 35 Wis. 308, See U. S. v. Vigil, (N. Mex.) 34 Pac. 1874; Ingram v. State, 7 Mo. 293, 1842. Rep. 530, 1893.
+ See Whart. Cr. Pl. & Pr. & 260; * In Louisiana it has been held that and see Bruguier v. U. S., 1 Dak. 5, a prior ruling of the late Court of 1867.
presses a moral taint.
cuted by information. At common law, “infamy” was held to
attach to all crimes, a conviction of which impressed “ Infamy”
such a moral taint on the perpetrator as was supposed to which im
require his incapacitation as a witness and the suppression of his political rights." Infamy, in this sense, in
cludes treason, felony, and the crimen falsi; and a conspiracy to commit an infamous offence partakes of the character of the offence at which it is aimed. The meaning of the term “infamous offences" under the federal constitution is discussed in another work.?
$ 23. Misdemeanors comprise at common law all ofMisde
fences, lower than felonies, which may be the subject of comprise offences indictment. They are divided into two classes: first, such lower than
as are mala in se, or penal at common law; and secondly,
such as are mala prohibita, or penal by statute. § 23 a. In all jurisprudences a distinction more or less marked has been made between police wrongs and criminal wrongs. The
distinction is made to rest sometimes on the tribunal Police of
having jurisdiction of the wrong: wrongs peculiarly cogbe distinguished
nizable by police courts being called police wrongs; those from crim- peculiarly cognizable by criminal courts of record being .
called criminal wrongs. This line, however, is unsatisfactory, many prosecutions which are eminently of a police character involving large interests, and hence made subjects of prosecution in our highest courts. For similar reasons we must reject the distinction that little wrongs are police wrongs, and great wrongs are criminal wrongs; since there are many criminal wrongs (e. g., small larcenies) which are little, and many police wrongs (e. g., such as interfere with liberty of trade) which are great. Nor can we accept as entirely adequate the tests sometimes given, that police wrongs consist of threatened, and criminal wrongs of consummated injuries ; or that police wrongs consist exclusively in disturbances of order, criminal wrongs in violations of justice. We may more properly hold, enlarging the last distinction, that by criminal wrongs the existence of the State is assailed; by police wrongs, only the administration of its economical structure: the first attack the funda
1 See Whart. Cr. Ev. & 363.
see Oshkosh v. Schwartz, 55 Wis. 483, ? Whart. Cr. Pl. & Pr. 28 85 et seq. 1882. That a police procedure is no See U. S. v. Field, 16 Fed. Rep. 778, bar to a criminal prosecution for the 1883, with note.
same offence, see Whart. Cr. Pl. & Pr. As to the distinction in such cases, & 440.
mental institutes of society, the latter only its modes of operation : the first concern principle, the second concern procedure. It is true that the two classes melt undefinably into each other, as is the case with civil and criminal wrongs, and that an offence, which in one aspect is a police wrong, is a criminal wrong in another aspect. But that there is a distinction in ethics there can be no question, the one case involving, the other not involving, a moral taint. Nor can we refuse to admit a distinction in law. Accessaries in criminal offences, for instance, are involved in the guilt of principals; not so accessaries in police offences.' It is not indictable, for instance, to buy spirituous liquors illegally sold;' nor is it indictable to contract to sell such liquor in the gross to a person who is to sell it illegally at retail;* nor is it indictable to attempt such offences." Police offences, we may further notice, have, in common with offences of omission, this characteristic—that they are usually breaches of affirmative and not of negative commands. The police law says: “You must do a particular thing." The offender, either designedly or negligently, omits to do this thing. A criminal offence, on the other hand, is a breach of negative command: “Thou shalt not steal.” Police offences, also, as we have just seen, are usually not against the material and moral element in the law, but against its formal structure. It becomes, therefore, in most police prosecutions, a matter immaterial whether evil consequences flow from the defendant's disobedience, and whether, if they do, they are imputable to the defendant. It may be made a police offence, for instance, for a man to permit ice to accumulate before his front door on a city street. If so, it is of no consequence whether an injury occurred thereby to individuals traversing the street, or whether the offender was cognizant of the violation of law. The same remarks are applied by a recent leading German jurist to a series of acts made penal by the German Code, such as the possession of unstamped and unverified scales and measures; and the storing of explosive compounds in places forbidden by law. Our own prosecutions of persons concerned in selling intoxicating liquors may be placed in the same category. We do not inquire whether any person was
1 Whart. Cr. Pl. & Pr. & 306, 312, 4 Pulse v. State, 5 Humph. 108, 440.
1844. Infra, & 1529; Com. v. Willard, 22 Infra, & 177. Hill v. State, 53 Ga. Pick. 476,1839. And so as to attempts, 125, 1874. infra, & 177.
* Merkel, Kriminalistische Abhand* Infra, l 177, 1529.
lungen, i. p. 97. .
injured by the sale or exposure of the liquor. We do not inquire
penal by statute, may consist, not only of acts made spe-
matter of public convenience, all acts or omissions con
trary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode of proceeding. Thus, wherever a duty is imposed on a public officer, the neglect to perform it is a public offence, and as such is indictable. And the imposition by
1 See Com. v. Wolf, 3 S. & R. 47, Lenoir, 4 Hawks, 194, 1825; State v. 1817. Conscientious religious belief Fletcher, 5 N. H. 257, 1830; State v. that another day is the Sabbath is no Thompson, 2 Strob. 12, 1847; Tate defence to an indictment for Sabbath- v. State, 5 Blackf. 73, 1839; State v. breaking. Specht v. Com., 8 Barr, 312, Williams, 12 Ired. 172, 1851; People 1848; Scales v. State, 47 Ark. 476, v. Bogart, 3 Park. Cr. Rep. 143, 1856; 1886; Parker v. State, 16 Lea, (Tenn.) Keller v. State, 11 Md. 525, 1857; 476, 1886; Com. v. Starr, 144 Mass. State v. Sanford, (N. J.) 4 Crim. Law 359, 1887; Leiberman v. State, 26 Mag. 221, 1883; State v. Parker, 91 Nebr. 464, 1889. See infra, & 1431; N. C. 650, 1884. and also 388, 89.
• Wilson v. Com., 10 S. & R. 373, 2 See infra, & 88.
1824; Gearhart v. Dixon, 1 Barr, 224, 3 2 Hawk. P. C. c. 25, s. 4; R. v. 1845. For proceedings against a corDavis, Sayers, 163, 1754; R. v. Harris, poration see infra, & 91; R. v. Great 4 T. R. 202, 1791 ; R. v. Sainsbury, 4 N. & E. Ry. Co., 9 Q. B. 315, 1846 ; T. R. 451, 1791 ; R. v. Gregory, 2 N. People v. Corp. of Albany, 11 Wend. & N. 478; s. C. 5 B. & Ad. 555, 1833; 539, 1834; Whart. Cr. Pl. & Pr. 88 109, R. v. Vott, 2 C. B. 768, 1791; State v. 110, 220 et seq.; 6 Crim. Law Mag. 317.