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of persons examined before the King's council, or three of them, upon any

murders or other offences therein mentioned under such circumstances and in such cases as in the said act are mentioned; but no provision is therein made for the trial of accessories before the fact in murder : it is therefore provided by the statute 43 G. 3. c. 113. s. 6. that the powers and authorities of the former statute shall be extended to the offence of procuring, &c. or otherwise becoming an accessory before the fact to any murder. (9)

(9) By s. 7. this act is not to extend to Ireland.

CHAPTER THE THIRD.

OF INDICTABLE OFFENCES.

OFFENCES which may be made the subject of indictment, and are below the crime of treason, may be divided into two classes,

felonies and misdemeanors. Felony defined. The term felony appears to have been long used to signify the

degree or class of crime committed, rather than the penal consequence of forfeiture occasioned by the crime, according to its original signification. The proper definition of it, however, as stated by an excellent writer, recurs to the subject of forfeiture, and describes the word as signifying-an offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded according to the degree of guilt. (a) Capital punishment does by no means enter into the true definition of felony : but the idea of felony is so generally connected with that of capital punishment, that it is hard to separate them; and to this usage the interpretations of the law have long conformed. Therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death as well as with forfeiture, unless the offender prays the benefit of clergy, which all felons are entitled once to

have, unless the same is expressly taken away by statute. (6) What words in

With regard to felonies created by statute, it seems clear that a statute create a felony.

not only those crimes which are made felonies in express words, but also all those which are decreed to have or undergo judgment of life and member by any statute, become felonies thereby, whether the word “felony” be omitted or mentioned. (c) And where a statute declares that the offender shall, under the particular circumstances, be deemed to have feloniously committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony. (d) But an offence shall never be made felony by the construction of any doubtful and ambiguous words of a statute ; and therefore, if it be pro

(a) 4 Bla. Com. 95, and see 1 Hawk. ing of pretium feudi, see Spelm. Gloss. c. 25. s. I. " The higher crimes, rape, Felon, 4 Bla. Com. 95.

robbery, murder, arson, &c., were (6) 4 Bla. Com. 98. Rex v. Joba“ called felony; and being interpreted son, 3 M. & S. 549. Post, Book IV. “ want of fidelity to his lord, made Chap. xv. " the vassal lose his fief." 2 Hume, (c) i Hale 703. 1 Hawk. P.C. c. 40. App. ii. p. 129. As to the derivation S. 2. of the word felony, from feah, or fee, (d) By Bayley, J. in Johnson's case, the fief or estate, and lon, the price or 3 M. & S. 536. values aud ascribing to it the mean

hibited under “pain of forfeiting all that a man has," or of " forfeiting body and goods,” or of being “at the King's will for body, land, and goods,” it shall amount to no more than a high misdemeanor. (e) And though a statute make the doing of an act felonious, yet if a subsequent statute make it penal only, the latter statute is considered as a virtual repeal of the former, so far as relates to the punishment of the offence. (f) And it should also be observed, that where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied that such second offence ought to be committed after a conviction for the first; from whence it follows, that if it be not so laid in the indictment, it shall be punished but as the first offence : for the gentler method shall first be tried, which perhaps may prove effectual (8) Where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor. (h)

The word misdemeanor, in its usual acceptation, is applied to Misdemeanors all those crimes and offences for which the law has not provided a

described. particular name; and they may be punished, according to the degree of the offence, by fine or imprisonment, or both. (i) A misdemeanor is, in truth, any crime less than a felony; and the word is generally used in contradistinction to felony; misdemeanors comprehending all indictable offences which do pot amount to felony, as perjury, battery, libels, conspiracies, and public nuisances. (k) Misdemeanors have been sometimes termed misprisions': indeed, the word misprision, in its larger sense, is used to signify every considerable misdemeanor which has not a certain name given to it in the law; and it is said that a misprision is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only, if the king please. (i) But generally misprision of felony is taken for a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law, or by statute; (m) and silently to observe the commission of a felony, without using any endeavours to apprehend the offender, is a misprision; a man being bound to discover the crime of another to a magistrate with all possible expedition. (n) If this offence were accompanied with some degree of maintenance given to the felon, the party committing it might be liable as an accessory after the

It is clear that all felonies, and all kinds of inferior crimes of a Indictable ofpublic nature, as misprisions, and all other contempts, all dis- fences. turbances of the peace, oppressions, misbehaviour by public officers, and all other misdemeanors whatsoever of a public evil example

fact. (0)

(e) i Hawk. P. C. c. 40. s. 3. If I Hawk. P. C. c. 40. s. 5. () Hawk. P. C. c. 40. s. 4.

(h) Rex v. Cross, 1 Ld. Raym. 711. 3 Salk. 193.

(i) 3 Burn. Just. tit. Misdemeanor, citing Barlow's Justice, tit. Misdem.

(ki 4 Bla Com. 5, note 2. 3 Buro. Just. tit. Misdemeanor.

(1) i Hawk. c. 20. s. 2. and c. 50. $. 1, 2. Burn. Just. tit. Felony.

(m) i Hawk. P. C. c. 59. $. 2. Post, Book II. Chap. xiii.

(12) 3 Inst. 140. 1 Hale 371–375.

(0) I Hawk. P. C. c. 59. s. 6. The concealment of treasure trove is misprision of felony. 4 Blac. Con. 121. 3 lost. 139.

against the common law, may be indicted. (p) And it seems to be an established principle, that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor at common law. (9) Also it seems to be a good general ground, that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable not only at the suit of the party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it. (r) But no injuries of a private nature are indictable, unless they in some way concern the king.(s)

It is an indictable offence, in the nature of a misdemeanor, to refuse or neglect to provide sufficient food or other necessaries for any infant of tender years, unable to provide for and take care of itself, (whether such infant be child, apprentice, or servant,) whom the party is obliged by duty or contract to provide for; so as thereby to injure its health. (a)

So long as an act rests in bare intention, it is not punishable: but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. (t) Thus, an

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Attempts to commit crimes.

(p) 2 Hawk. P.C. c. 25. s. 4. As to count, and not indictable : but the misbehaviour by public officers, see Court held otherwise, as it related to post, Book II. Chap. xiv.

the public revenue. (q) 4 Blac. Com. 65 (n). 13th edit. (a) Rex v. Friend and his wife, 1 Hawk. P.C. c. 5. S. 4. 1 East. P. C. February 1802, MS. Bayley J. and c. 1. s. I. and see Rex v. Sir Charles Russ. and Ry. 20. Chambre J. difSedley, Sid. 168. i Keb. 620. and fered, thinking it not an indietable Rex v. Crunden, 2 Campb. 89. Cases offence, but a matter fouoded wholly of men indecently exposing their on contract, in this which was the naked persons.

case of an apprentice. The indict(r) 2 Hawk. P. C. c. 25. $. 4. and ment should state that the infant was see 1 Hawk. P.C. c. 22. s. 5. where it of tender years, and not able to prois laid down that every contempt of a vide for itself. And see Rex r. Ridley, statute is indictable. But it is ques- 2 Campb. 650. Rex v. Squire and wife, tionable, where the party offending post, Book III. Chap. i. of Murder. As has been fined, if he niay afterwards to the neglect of paupers by overseers be indicted: and where a statute ex- of the poor, see post, Book II. Chap. tends only to private persons, or xiv. Offences by persons in Office. chiefly relates to disputes of a private (t) Per Lord Mansfield, C. J. in nature, it is said that offences against Schofield's casc, Cald. 397. The anit will hardly bear an indictinent. cient writers, in treating of felonious 2 Hawk. P. C. c. 25. S. 4.

homicide, considered the felonious (8) 2 Hawk. P. C. c. 25. S. 4. Rex intention in the same light in point of v. Richards, 8 T. R. 637. This dis- guilt as homicide itself. Voluntas tinction is stated also to have been repulabatur pro facto, a rule which taken in Rex '. Bembridge and has long been laid aside as too rigoPowell (cited in Rex v. Southerton, rous in the case of comnion persons, 6 East. 136.), who were indicted for though retained in the statute of enabling persons to pass their ac- Treasons, 25 Ed. 3, st. 5. c. 2. But counis with the Pay-office in such a when the rule prevailed, it was necesway as to enable them to defraud the sary that the intention should be ma. Government. It was objected, that'vifested by plain facts, not by bare ibis was only a private matter of ac- words of any kind. Hæc voluntas non

attempt to commit a felony is, in many cases, a misdemeanor :(u) and an attempt to commit even a misdemeanor has been decided in many cases to be itself a misdemeanor. (w) And the mere soliciting another to commit a felony is a sufficient act or attempt to constitute the misdemeanor. Thus, to solicit a servant to steal his master's goods is a misdemeanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting. (x) It was held not to be necessary, in order to shew that this was only a misdemeanor, to negative the commission of the felony; as none of the precedents of indictments for attempts to commit rape or robbery contain any such negative averment: but it is left to the defendant to shew, if he please, that the misdemeanor was merged in the greater offence. And it has been held, that the completion of an act, criminal in itself, is not necessary to constitute criminality. (y) It should seem that an attempt to commit a statutable misdemeanor, is as much indictable as an attempt to commit a common law misdemeanor. (a)

Upon the same principles some earlier cases appear to have proceeded. Thus, it was held indictable to attempt to bribe a cabinet minister and a member of the privy council to give the defendant an office in the colonies. (2) And an information was granted against a man for promising money to a member of a corporation, to induce him to vote for the election of a mayor: (i) an information also appears to have been exhibited against a person for attempting by bribery to influence a juryman in giving his verdict. (b) And it is laid down generally, that if a party intellecta fuit de voluntate nudis verbis attempts as tend to the prejudice aut scriptis propalata, sed mundo ma- “ of the community are indictable.” nifestata fuit per aperlum faclum. (2) Higgins's case, 2 East. R. 5. in 3 Inst. 4. Post. 193.

which see many cases cited, where (4) Higgins's case, 2 East. R. 21. attempts to commit felonies and misRex v. Kinnersley and Moore, i Str. demeanors have been considered as 196. But in 1 Hawk. P. C. c. 25. s. 3. misdemeanors. is the following passage:—"The bare (y) By Lord Mansfield in Rex v. “intention to commit a felony is so Schofield, Cald. 400. “ very criminal, that at the common (a) This was the opinion of Le Blanc, “ law it was punishable as felony J. in Rex v. Cartwright, East. T. 1806, " where it missed its effect through Russ. and Ry. 107,: but it seems "some accident, no way lessening the Judges did not go into the point, " the guilt of the offender. But it as they decided that the paper by the “ seems agreed at this day, that felony production of which the defendant “ shall not be imputed to a bare in- bad attempted to obtain money at a “tention to commit it; yet it is cer- banker's, and which was stated to be “ lain that the party may be very an order, was really no order. MS. “ severely fined for such an inten- Bayley, J. * tion.". Probably the latter part of (z) Vaughan's case, 4 Burr. 2494. this passage was intended to relate to and see Řex v. Pollman and Others, an intention manifested by some act. 2 Campb. 229. where a conspiracy to And see i Hawk. P. C. c. 55.

obtain money by procuring from the (w) Per Grose, J. in Higgins's case, Lords of the Treasury the appoint.? Èast. R. 8. and see Rex v. Phillips, ment of a person to an office in the 6 East. 464. where an endeavour to Customs, was held to be a misdeprovoke another to commit the mis- meanor at common law. demeanor of sending a challenge to (1) Plympton's case, 2 Lord Raym. fight, was held to be an indictable 1377. misdemeanor. And by Lawrence J. (6) Young's case cited in Higgios's in Higgins's case, “all such acts or case, 2 East. R. 14 and 16.

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