statute of a penalty (unless where it is imposed, as in tax and similar statutes, as a mere alternative) in itself implies a prohibition.' It is otherwise, however, when a civil action is made by statute the specific remedy.2 Statutory as to punishment to § 25. Whenever a statute creates an offence, and ex- provisions pressly provides a punishment, the statutory provisions must be followed strictly and exactly, and only the statu- be strictly tory penalty can be imposed.3 followed. ties are cu mon law. § 26. Where a statute attaches a police penalty to that which was an offence at common law, and where there is nothing New statuin the statute to show that the statutory remedy is to be tory penalexclusive, either the remedy by statute or that at common mulative law can be pursued. And if the statute specify a mode with comof proceeding different from that by indictment, then, if the matter were already an indictable offence at common law, and the statute introduced merely a different mode of prosecution and punishment, the remedy is cumulative, and the prosecutor has the option of proceeding either by indictment at common law or by the mode pointed out by the statute. Thus, where the charter of a turnpike road provided a particular penalty for not keeping the road in repair, negligence in this respect followed by injury was held indictable at common law. But where the statute prescribes 1 Bensley v. Bignold, 5 B. & Ald. 335, 1822. But if no penalty is attached to a forbidden act, it cannot be punished as a misdemeanor. State v. Gaunt, 13 Oreg. 115, 1885. See U. S. v. Brown, Deady, 566, 1869; Keith v. Tuttle, 28 Me. 326, 1848; Woodward v. Squires, 39 Iowa, 435, 1874. R. v. Wright, 1 Burr. 543, 1758; People v. Stevens, 13 Wend. 341, 1835; People v. Hislop, 77 N. Y. 331, 1879. Infra, 28, 30. * 2 Hale, 191; 1 Saund. 195, n. (4); R. v. Dickenson, 1 Saund. 135, 1679; R. r. Wigg, 2 Ld. Raym. 1163; s. c. 2 Salk. 460, 1706; R. v. Robinson, 2 Burr. 799, 1759; R. v. Balme, 2 Cowp. 648, 1777; R. v. Carlile, 3 B. & Ald. 161, 1819; State v. Evans, 7 Gill & J. 290, 1835; Moore v. State; 9 Yerg. 353, 1836; contra, State v. Boogher, 71 VOL. I.-3 Mo. 631, 1880. See Whart. Cr. Pl. & Turnpike Road v. People, 15 Where a statute prohibits an act which was before lawful, and enforces the prohibition with a penalty, and a succeeding statute (R. v. Boyall, 2 Burr. 832, 1759), or the same statute, in a subsequent substantive clause, describes a mode of proceeding for the penalty different from that by indictment, the prosecutor may, notwithstanding, proceed by indictment upon the prohibitory clause, as for a misdemeanor at common law; or he may proceed in the manner pointed out by the statute, at his option; 2 Hale, 171; R. v. Wright, 1 Burr. 543, 1758; and see R. v. Jones, 2 Str. 1146, 1741; R. v. Harris, 4 T. R. 202, 1791; Whart. Cr. Pl. & Pr. ?? 232, 281; but if the 33 a penalty which in its terms is exclusive, then no subsequent penalty can be imposed.' Offences are divisi discharging aggra vating in cidents. § 27. Questions frequently arise whether a particular offence is divisible; in other words, whether it is susceptible of ble; (1) by being divided into two or more offences, each to be open to a separate prosecution. The first line of cases of this class we have to notice is where one offence is an ingredient in another, an assault in assault and battery, manslaughter in murder, and larceny in burglary. Several of such concentric layers may successively exist. Thus we may take the case of an assault, enveloped by a battery, and this by manslaughter, and this by murder. Add the blow to the assault, and it becomes assault and battery. Add a killing to the assault and battery, and it becomes manslaughter. Add malice aforethought to manslaughter, and it becomes murder. Or, to take the converse, strip from murder the malice aforethought, and it becomes manslaughter. Strip from manslaughter the death of the party as manner of proceeding for the penalty the indictment and sentence must purbe contained in the same clause which sue the act. It has even been held, prohibits the act, the mode of pro- that when an act of assembly gave a ceeding given by the statute must be penalty to the party injured by the pursued and no other; for the express extorsive and corrupt conduct of a mention of any other mode of pro- magistrate, to be recovered by a civil ceeding impliedly excludes that of suit, the offence ceased to be indictable indictment. R. v. Buck, 2 Str. 679, at common law. Com. v. Evans, 13 S. 1726; R. v. Robinson, 2 Burr. 799, 1759. & R. 426, 1826. But the act in quesIn Pennsylvania it is provided that tion seems to apply only when a spe"in all cases where a remedy is pro- cific mode of procedure is directed by vided, or a duty enjoined, or anything statute; for when a new penalty is directed to be done by any act or acts attached to a common law offence, the of assembly of this cominonwealth, indictment may still be at common the directions of the said acts shall be law, though in case of conviction none strictly pursued, and no penalty shall but the statutory punishment can be be inflicted, or anything done agree- inflicted. White v. Com., 6 Binn. 179, ably to the provisions of the common 1813; Com. v. Church, 1 Barr, 105, law, in such cases, further than shall 1845; Com. v. Van Sickle, Bright. N. be necessary for carrying such act or P. 69, 1845. See Whart. Cr. Pl. & Pr. acts into effect." Act of 21st of March, 232. 1806, sect. xiii.; 4 Smith's Laws, 332; Whart. Cr. Pl. & Pr. 232. It has 3 Theft committed in connection been held by the courts, in conformity with a burglary may be treated as a with this act, that wherever a mode of distinct crime, and a separate prosecuprocedure is attached to a specific of- tion may be maintained for each offence by any act of assembly, the fence. Smith v. State, 22 Tex. App. common law remedy is abrogated, and 350, 1886. 1 Whart. Cr. Pl. & Pr. & 455 a. saulted, and the offence becomes assault and battery. Negative the battery, and the case is one of assault. Now this rejecting of successive aggravations is a function open to juries in all cases where there is presented to them one offence in which another is inclosed. The jury may acquit of murder and convict of manslaughter; or, as the practice is, convict of manslaughter, which operates as an acquittal of murder.1 Or the jury, on the same prosecution, may convict of the assault, and thereby acquit of the manslaughter and the murder. No question has ever been made. as to this right on the part of the jury; and it is settled by a great preponderance of authority that a conviction of the minor offence, on an indictment which would have sustained a conviction of the major, is an acquittal of the major. It has, however, been much contested whether the prosecution, by dropping the major offence, when such offence is a felony, can proceed for the minor offence. At common law it has frequently been held, that if on trial a misdemeanor (e. g., assault) turns out to be a felony (e. g., robbery), then, on the ground that the misdemeanor is extinguished by being merged in the felony, the defendant must be acquitted of the felony.* A more rational doctrine, however, has been established by statutes, and in some jurisdictions by common law, to the effect that the prosecution may in such cases waive the felony, and prosecute only for the constituent misdemeanor, supposing the misdemeanor be proved. No matter how long a time an offence may take in its perpetration, it continues but one offence. An explosive package, (2) By difor instance, may be sent from Maine to California, and versity as may take weeks in the transit, but the transmission is a to time. See State v. 1 See Whart Cr Pl. & Pr. 465. rape, see infra, & 576. 'That under an indictment for Burk, 89 Mo. 635, 1886. murder there can be a conviction of 3 See Whart. Cr. Pl. & Pr. 464. manslaughter, see infra, 542; that Ibid. Infra, 22 576, 641 a, 1344. under burglary, including larceny, 5 See Whart. Cr. Pl. & Pr. 32 468 there can be a conviction of larceny, -476. As to merger, see infra, ? 27 a. see infra, 819; that under robbery But the averments of the indictment there can be a conviction of larceny, should include the less offence. People see infra, & 858; that under felonious v. Adams, 52 Mich. 24, 1883; State v. assault there can be a conviction of Yanta, 71 Wis. 669, 1888. And if the assault, see infra, 22 576, 641 a; that under adultery there can be a conviction of fornication, see infra, 1737. Whether there can be a conviction of a minor offence on an indictment for offence charged is not a crime under the law, there can be no conviction of a less offence, though properly pleaded. State v. Ryan, 15 Oreg. 572, 1888. single act. Difficult questions, indeed, may arise, to be hereafter noticed,' when gas or liquor is tapped by a pipe through which there is a continuous passage for days. But whatever may be the conclusion as to such cases, it is settled that nuisances, when distinct impulses are given at intermittent successive times, may be the object of successive prosecutions. The distinction is this: when the impulse is single but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." An offence which is continued through a series of jurisdictions (3) By di- may be prosecuted in any one of them." versity as to place. (4) By diversity as An offence, also, is capable of division by being directed to a plurality of objects. It has been said, indeed, that to strike A. and B. at one blow is but one offence. But to object. though this may be sustained in cases in which there was no intention to strike more than one blow, it is otherwise when two homicides, of distinct grades, are consummated by one act, or when there is an intention to kill two persons. And so the stealing simultaneously of the goods of two persons is divisible." An offence may have several aspects: e. g., it may be a larceny, or it may be an official embezzlement. If an offence of (5) By diversity as this class can be described in its several phases in one to aspects. indictment, then, as a rule, it is not divisible; if it cannot be so described, then it may be indicted in either aspect. There are cases, however, to be elsewhere discussed, in which the State, by selecting one of these aspects to prosecute, is precluded from afterward prosecuting the other. An offence, in the last place, may have several actors, who may be jointly indicted, but as to whom verdict and judgment are to 1 Infra, & 931. Whart. Cr. Pl. & 2 Cowp. 640; s. c. 1 Smith L. C. 711, Pr. 474. 2 Whart. Cr. Pl. & Pr. ? 475. 3 The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. R. v. Scott, 4 B. & S. 368, 1863; In re Hartley, 31 L. J. M. C. 232, 1862; Ex parte Beal, L. R. 3 Q. B. 387, 1868. If the latter, there can be but one penalty. Crepps . Durden, (8th Eng. ed.) 1079, (8th Am. ed.) 1777; Frietleborn . Com., 113 Pa. 242; s. c. 57 Am. Rep. 464, 1886. 4 Whart. Cr. Pl. & Pr. 473; and see, as to conflicting jurisdictions, infra, ?? 287–291. 5 Whart. Cr. Pl. & Pr. & 469. (6) By di actors. Merger is absorption of lesser in offence. be several. Any one of these, as a rule, may be acquitted or convicted independently of the others; though, in cases of conspiracy and riot, one party alone cannot be convicted versity of unless, in conspiracy, there is at least one co-conspirator to unite in constituting the offence, or, in riot, at least two co- rioters. § 27 a. Merger is said to exist when a lesser offence is absorbed. in a greater, but in criminal practice the only cases in which such absorption is claimed to be operative is when a misdemeanor is an ingredient of a felony, in which case greater the older authorities maintain that the trial must be exclusively for the felony, and that the defendant cannot, under an indictment for felony, be convicted of misdemeanor. The reason alleged for this is that in those days the incidents of a trial for felony were so different from those of a trial for misdemeanor that it was not right to invest the prosecution with the power of interchanging them at its caprice. A party charged with felony, for instance, was not entitled to counsel, and his right of challenge and his right to a copy of the indictment were restricted. If there were no merger―if, on the one side, the defendant, on proof of the felony on an indictment for misdemeanor, could be convicted of the misdemeanor charged; or if, on the other side, on disproof of the felony on an indictment for the felony he could be convicted of the constituent misdemeanor, this would do away with the distinction between felonies and misdemeanors, as above stated. This distinction, however, the courts could not do away with, and the only way to avoid this was to preserve the line of demarcation between felonies and misdemeanors intact. This they did by determining (1) that there could be no conviction of a misdemeanor on an indictment for a felony, for this would be to deprive the defendant of privileges to which he would be entitled if the indictment was for a misdemeanor; and (2) that if the offence charged was a misdemeanor, and the offence proved turned out to be a felony, then there must be an acquittal, which would not bar an indictment for felony, on the trial of which the defendant would be put under due restrictions as to counsel and other privileges. As will be hereafter seen, since the abolition of these distinctions between felony and misdemeanor, the doctrine of merger, above stated, has no reasonable basis on which to rest. The consequence is that 1 Whart. Cr. Pl. & Pr. 22 306–312. 2 Whart. Cr. Pl. & Pr. 3 305–312. 3 See Whart. Cr. Pl. & Pr. 464. Infra, 395, 576, 641 a, 1343. • Infra, 2 576, 641 a, 1343. |