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sought to punish therefor, cannot be punished as a crime,58 and the court cannot by construction make that a crime which is not so prohibited.59 The prohibition must be by the laws of the state in which it is sought to punish.60 An act may be prohibited and made punishable either by the common law,61 or by statute.62

[23] 2. Application and Operation of Common Law-a. In General. The common law of England, as the term is here used, is that portion of the law which is based, not upon legislative enactment, but upon immemorial usage and the general consent of the people. This common law has, from time immemorial, punished certain of the more grievous offenses as felonies,64 such as murder and

63

or criminal." And, after referring to certain specific provisions in the same act, he continued: "But in all other respects the courts of each province, including the judges and the officials of the court, together with those persons who practice before them, are subject to the jurisdiction and control of the provincial legislature; that legislature and no other has the right to prescribe rules for the qualifications and admission of practitioners, whether they be pleaders or solicitors. Their Lordships, in these circumstances, do not entertain any doubt that the Parliament of Ontario had ample authority to give the Lieutenant-Governor power to confer precedence by patent upon such members of the bar of the province as he may think fit to select." Atty.-Gen. V. Atty.-Gen., [1898] A. C. 247, 2154 (per Lord Watson).

[b] Regulation of jurisdiction of courts and judges.-(1) Under the power of the provincial legislature to legislate regarding the constitution. maintenance, and organization of provincial courts, it has the power to define the jurisdiction of such courts territorially as well as in other respects, and also to define the jurisdiction of the judges who constitute such courts. In re British Columbia County Cts., 21 Can. S. C. 446. (2) "The constitution of a court therefore necessarily includes its jurisdiction; and the granting by the British North America Act to the provincial legislatures of the power to constitute Courts of civil and of criminal jurisdiction necessarily included the power of giving jurisdiction to those Courts, and impliedly included the power of enlarging, altering, amending, and diminishing the jurisdiction of those Courts." Reg. V. Levinger, 22 Ont. 690, 692. But see Reg. v. Toland, 22 Ont. 505 (holding that such an act dealt with criminal procedure, and was therefore in conflict with the provisions of the British North America Act first quoted). | 58. U. S.-U. S. v. Dietrich, 126 Fed. 676.

Fla-Milton v. State, 40 Fla. 251, 24 S 60.

Ga.-Battle v. Marietta, 118 Ga. 242, 44 SE 994.

Ind.-Rust v. State, 4 Ind. 528. Iowa. State v. O'Neil, 147 Iowa 513, 126 NW 454, 33 LRANS 788, AnnCas1912B 691.

La.

La-State V. De Hart, 109 570, 33 S 605. Md-Keller v. State, 12 Md. 322, 71 AmD 596.

Mass.-Com. v. Bennett, 108 Mass. 30, 11 AmR 304; Com. v. Grover, 16 Gray 602; Com. v. Edwards, 4 Gray 1: Com. V. Pattee, 12 Cush. 501; Com. v. Kimball, 21 Pick. 373; Com. v. Marshall, 11 Pick. 350, 22 AmD 377. Miss.-Wheeler v. State, 64 Miss. 462. 1 S 632.

Nebr.-State v. De Wolfe, 67 Nebr. 321, 93 NW 746.

manslaughter,5 arson,66 larceny,67 robbery,68 burglary,69 rape," 70 and sodomy." Certain other acts, because of the manifest injury to the public, are punishable as misdemeanors at common law under well known names, such as riot, rout, and unlawful assembly,72 affray,73 assault and battery,74 false imprisonment,75 kidnapping,76 mayhem," forgery or counterfeiting, bribery,80 perjury,81 libel,82 and conspiracy.83 In addition to these specific crimes the common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer,85 as in the case of acts constituting or directly

78

Nev.-Ex p. Rickey, 31 Nev. 82, 100 P 134, 135 AmSR 651.

N. C.-State v. Williams, 97 N. C. 455, 2 SE 55.

Oh.-Smith v. State, 12 Oh. St., 466, 80 AmD 355.

Or.-State v. Stephanus, 53 Or. 135, 138, 99 P 428, 17 AnnCas 1146 [cit Cyc]; State v. Mann, 2 Or. 238. Pa.-Com. v. Duane, 1 Binn. 601, 2 AmD 497.

Wis.-State v. Ingersoll, 17 Wis.

631.

Eng. Reg. v. Cooper, 2 C. & H. 876, 61 ECL 876.

N. B.-Reg. v. McLaughlin, 8 N. B. 159.

[a] Violation of regulations prescribed by a government department cannot be made the basis of a crim. inal charge in the absence of a statute distinctly declaring such viola. tion to be a criminal offense. U. S. v. Keitel, 157 Fed. 396 [rev on other grounds 211 U. S. 370, 29 SCt 123, 53 L. ed. 230]; U. S. v. Sandefuhr, 145 Fed. 49.

[b] Trespass ab initio.-The rule in civil cases that when one does a thing by permission of law and after proceeding lawfully part way abuses the permission given him he is deemed a trespasser from the beginning, does not apply in criminal law, as no man is punishable for what was not criminal when done, even though he afterward adds either the act or the intent, yet not the two together. Milton v. State, 40 Fla. 251, 24 S 60.

[c] An act which is not a crime when committed does not become such by any subsequent independent act with which it is not connected. U. S. v. Fox, 95 U. S. 670, 24 L. ed. 538; U. S. v. Dietrich, 126 Fed. 676.

[d] The repeal of a law without a saving clause, even after a prosecution has been commenced for its violation, and even after a conviction but before judgment, prevents further prosecution or punishment. Keller v. State, 12 Md. 322, 71 AmD 596; Com. V. Marshall, 11 Pick. (Mass.) 350, 22 AmD 377; Wheeler v. State, 64 Miss. 462, 1 S 632; State v. Williams, 97 N. C. 455, 2 SE 55; Com. v. Duane, 1 Binn. (Pa.) 601. 2 AmD 497; State v. Ingersoll, 17 Wis. 631. See Constitutional Law § 818; Statutes [36 Cyc 1230]. [e] Reenactment statute.-A crime committed before a statute took effect may be punished under it where the statute is simply a reenactment of a statute under which the crime was punishable when it was committed. Com. v. Bradley, 16 Gray (Mass.) 241.

of

59. U. S.-U. S. v. Wiltberger, 5 Wheat. 76, 5 L. ed. 37; Pentlarge v. Kirby, 19 Fed. 501.

La-State v. Fontenot, 112 La. 628, 36 S 630.

N. Y.-Peo. v. Friedman, 157 App. Div. 437, 142 NYS 367. Okl.-Shawnee v. Landon, 3 Okl. Cr. 440, 106 P 652.

84

Porto Rico.-Peo. V. Lopez, 23 Porto Rico 106; Peo. v. Aragon, 22 Porto Rico 741; Peo. v. Paratze, 22 Porto Rico 35.

60. Peo. v. Martin, 38 Misc. 67, 70, 76 NYS 953 [rev on other grounds 77 App. Div. 396, 79 NYS 340] (where it was said: "A crime is essentially local, and is the creature of the law which defines or prohibits it. It is an offense against the sovereignty, and can be taken notice of and punished only by the sovereignty offended. The indictment against the defendants is in the name of The People of the State of New York. They prosecute for a crime committed against their law, not for a crime committed against the law of a foreign State. Their law is entitled "The Penal Code of the State of New York' (Penal Code,

1), and an act or omission forbidden by that law is declared to be a crime. Id., § 3. Therefore, if a crime has been committed against the People of the State of New York, it must have been an act or omission forbidden by their law"). And see infra § 40.

61. See infra § 23 et seq. See infra § 28.

62.

See Common Law §§ 1-4. See supra §§ 6, 7.

63.

64.

65.

66.

See Homicide [21 Cyc 646]. See Arson 5 C. J. 537.

See Robbery [34 Cyc 1795]. See Burglary § 2.

67. See Larceny [25 Cyc 11.

68.

69.

70.

71.

72.

See Rape [33 Cyc 1412]. See Sodomy [36 Cyc 501]. See Riot [34 Cyc 1770]; Unlawful Assembly [39 Cyc 8311. See Affray § 1.

73. 74.

175.

See Assault and Battery §

75. See False Imprisonment [19 Cyc 376]. 76. See Kidnapping [24 Cyc 796]. 77. See Mayhem [26 Cyc 15951. 78. See Forgery [19 Cyc 1367]. 79. See Counterfeiting § 7. See Bribery § 1.

80.

81.

See Perjury [30 Cyc 1395]. 82. See Libel and

Cyc 225].

Slander [25

83. See Conspiracy § 9.

84. See cases infra note 85 et seq.

85. Cal.-Peo. v. Garnett, 35 Cal. 470, 95 AmD 125.

Conn.-State v. Doud, 7 Conn. 384,

386.

Del.-State v. Buckley, 5 Del. 508. Ill-Walsh v. Peo., 65 Ill. 58, 16 AmR 569.

Ind.-State v. Bertheol, 6 Blackf. 474, 39 AmD 442.

La.-State v. Williams 7 Rob., 252, 273.

Me.-Kanavan's Case, 1 Me.. 226. Mass.-Com. v. Chapman, 13 Metc. 68; Com. v. Hoxey, 16 Mass. 385; Com. v. Silsbee, 9 Mass. 417.

Mo.-State v. Rose, 32 Mo. 560; State v. Appling, 25 Mo. 315, 69 ArD 469.

N. Y.-Loomis V. Edgerton, 19

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tending to a breach of the public peace;s frauds and cheats of a public nature or against which common prudence cannot guard, as distinguished from mere private frauds and cheats;87 acts injuriously

Wend. 419; Peo. 258.

N. C.-State v. Huntly, 25 N. C. 418, 40 AmD 416; State v. Jasper, 15 N. C. 323.

affecting the public safety, health, or comfort,ss or tending to injuriously affect the morals of the community or shock its sense of decency;89 and acts constituting or directly tending to an obstruction or a

or

v. Smith, 5 Cow. | to bring on a fight, induces the other
to strike him, is guilty of a misde-
meanor at common law, although he
State 1 Huntly, 25 N. C. 418, 40
may be unable to return the blow);
416 (holding that riding
AmD
going armed with unusual and dan-
gerous weapons to the terror of the
people was an indictable offense at
common law); State v. Jasper, 15 N.
C. 323 (disturbance of congregation
assembled for purposes of religious
worship, by laughing, talking, and in-
decent actions and grimaces).

Oh.-State v. Lafferty, Tapp. 113. Pa. Com. v. McHale, 97 Pa. 397, 410, 39 AmR 808; Barker v. Com., V. Sharpless, 2 19 Pa. 412; Com. Serg. & R. 91, 7 AmD 632; Respublica v. Terscher, 1 Dall. 335, 1 L. ed. 163; Respublica v. Powell, 1 Dall. 47, 1 L. ed. 31; Com. v. Cassidy, 6 Phila. 82.

S. C.-State v. De Witt, 20 S. C. L. 282, 27 AmD 371.

Tenn.-Britain v. State, 3 Humphr. 203; Bell v. State, 1 Swan 42. Vt.-State v. Keyes, 8 Vt. 57, 30 AmD 450; State v. Briggs, 1 Aik. 226.

Va.-Henderson v. Com., 8 Gratt. (49 Va.) 708 56 AmD 160; Com. v. Callaghan, 2 Va. Cas. (4 Va.) 460. Eng.-Reg. v. Quail, 4 F. & F. 1076 (inciting a servant to rob his master); Rex v. Burnett, 4 M. & S. 272, 105 Reprint 835.

Pa.-Com. v. Taylor, 5 Binn. 277;
Respublica v. Teischer, 1 Dall. 335,
1 L. ed. 163 (malicious mischief in
maliciously and willfully killing a
horse); Com. v. Cramer, 2 Pearson
441 (maliciously wounding a domes-
tic animal); Com. v. Haines, 4 PaLJR
17 (holding that the erection of a
stuffed Paddy so constructed and ex-
posed as to be calculated to produce
a breach of the peace is a misde-
meanor at common law).

Vt.-State v. Burnham, 56 Vt. 445,
48 AmR 801 (boxing match consti-
Aik. 226 (ma-
State
tuting a breach of the public peace);
v. Briggs, 1
licious injury to domestic animal).
Va.-Henderson v. Com., 8 Gratt.
(49 Va.) 708, 56 AmD 160 (breaking
and entering the premises of another
under circumstances constituting a
breach of the peace).

Eng.-Rex v. Summers, 3 Salk. 194,
91 Reprint 772 (libel).

in

Government and the public at large,
as rendering false accounts by per-
official positions, writing
sons
visions, and using false weights and
false news, selling unwholesome pro-
measures, were indictable at common
But cheats and frauds not cal-
law.
way, committed in the course of pri-
culated to effect the public in any
not
Peo. v.
vate transactions, and affecting only
the parties concerned, as by lying
Garnett, 35 Cal. 470, 472, 95 AmD
and false representations, were
indictable at common law."
Cyc
[19
Personation
See False
125.
387].
88. Del.-State v. Buckley, 5 Del.
379]; False Pretenses [19 Cyc 384,
508 (disorderly house).

as

113

412

a

the

Ind. State v. Bertheol, 6 Blackf. 474, 39 AmD 442 (disorderly house). Oh.-State v. Lafferty, Tapp. Pa.-Barker v. Com., 19 Pa. (selling_unwholesome provisions). (holding that it is indictable common nuisance to collect in streets of a city large numbers of language addressed to persons passrepassing on the public people by means of loud and indecent ing and street so as to obstruct the public right of passage along the street); ment calculated to alarm the public Com. v. Cassidy, 6 Phila. 82 (holding that the publication of an advertisemind unnecessarily was indictable at common law as a public nuisance). Va.-Com. v. Webb, 6 Rand. (27 ming up and stagnating the waters Va.) 726 (public nuisance in damof a creek in or near a public highway or other public place, so that the air is corrupted and infected and Eng.-Rex v. Burnett, 4 M. & S. sends forth noisome and unwholefor an some smells). offense indictable 272, 105 Reprint 835 (holding that it apothecary unlawfully and injurioussmallpox and to cause them while to be carried ly to inoculate children with the sick of the disease M. & S. 73, 105 Reprint along the public street); Rex v. Vana child infected with smallpox); Rex tandillo, 762 (carrying along a public highway v. Dixon, 3 M. & S. 11, 105 Reprint mous, 12 Mod. 342, 88 Reprint 1366; 516 (delivering noxious food); Anony1104 (the last two cases being for in keeping quantities of Rex v. Taylor, Str. 1167, 93 Reprint to the endangering of nuisance See Adulteration 2 C. J. p 1; Compersons and property). mon Scold 12 C. J. p 208; Nuisances [29 Cyc 1143].

was

an

[a] Mere private injury or wrong. (1) A mere private fraud, trespass, or other wrong, which does not injure or tend to injure the community at large to such an extent as to require the state to notice it and puntort only, ish the wrongdoer is a law. crime at common and not a Peo. v. Garnett, 35 Cal. 470, 95 AmD 125; Kilpatrick v. Peo., 5 Den. (N. Y.) See Breach of the Peace; 9 C. J. 277 (private trespass by breaking Disorderly Houses [14 Cyc windows); Peo. v. Miller, 14 Johns 1385; Disorderly Conduct [14 Cyc (N. Y.) 371 (private fraud); Com. 466]; v. Edwards, 1 Ashm. (Pa.) 46 (hold- 479]; Disturbance of Public Meeting that an indictment cannot be sup- ings [14 Cyc 539]; Forcible Entry an individual, for and Detainer [19 Cyc 1113]; Maported against being in the frequent practice of go-licious Mischief [25 Cyc 1671]; Proing to the house of another and fanity [32 Cyc 578]; Trespass [38 Cal.-Peo. v. Garnett, 35 Cal. 87. grossly abusing his family, thereby Cyc 1175]. rendering their lives uncomfortable, Mass.-Com. v. Warren, 6 Mass. it being a mere civil injury); State 470, 95 AmD 125. v. Middleton, 23 S. C. L. 275 (private fraud); State v. De Witt, 20 S. C. L. 74 (holding that a conspiracy to cheat N. Y.-Peo. v. Miller, 14 Johns. 282, 27 AmD 371 (private fraud); was indictable at common law). Com. v. Webb, 6 Rand (27 Va.) 726 (private nuisance); Rex v. Blake, 3 371 (holding that, where a person got Burr. 1731, 97 Reprint 1070 (holding possession of a promissory note by an indictment for forcible entry bad pretending that he wished to look where it did not show acts or cir- at it, and then carried it away and cumstances constituting a breach of refused to deliver it to the holder, the peace); Rex v. Storr, 3 Burr. 1698, this was merely a private fraud, and same effect); not punishable criminally); Peo. v. 97 Reprint 1053 (to Rex v. Wheatly, 2 Burr. 1125, 97 Babcock, 7 Johns. 201, 5 AmD 256 (mere private fraud). Pa.-Respublica v. Powell, 1 Dall. Reprint 746, 1 W. Bl. 273, 96 Reprint And see infra 151 (private fraud). 47, 1 L. ed. 31 (holding that an in- gunpowder (2) Nor does mere prinotes 86-91. baker employed by the vate immorality constitute a crime dictment would lie at common law Such offenses were against a at common law. courts. army of the United States, for ecclesiastical left to the Crouse v. State, 16 Ark. 566; Hop- cheat in baking two hundred and per v. State, 54 Ga. 389; Delany v. nineteen barrels of bread and markPeo., 10 Mich. 241; Carotti v. State, ing them as weighing eighty-eight 42 Miss. 334, 97 AmD 465; State v. pounds each, whereas they only sevS. C.-State v. Middleton, 23 S. C. Lash, 16 N. J. L. 380, 32 AmD 397; erally weighed sixty-eight pounds). Anderson v. Com., 5 Rand (26 Va.) See Adultery L. 275 (holding that selling a prom627, 16 AmD 776. 3; Fornication [19 Cyc 1434]; Lewd- issory note which the seller knew had [25 Cyc 210]; Seduction [35 been paid, but which he represented to the purchaser to be still due acCyc 1329]. cording to its face, was not an indictable offense, but a mere civil inBurr. V. Wheatly, 2 jury to be redressed by action). Eng.-Rex 1125, 97 Reprint 746, 1 W. Bl. 273, 96 Reprint 151 (holding that it was not an indictable offense at common law to deliver less beer than contracted for as the quantity due. this was a mere private fraud which common prudence against could guard); Reg. v. Mackarty, 2 "Cheats which are leveled against Ld. Raym. 1179, 92 Reprint 280. public justice, as judicial acts done without authority in the name of another, and frauds which affect the

ness

86. Del.-State v. Buckley, 5 Del. 508 (disorderly house).

Ind.-State v. Bertheol, 6 Blackf.
474, 39 AmD 442 (disorderly house).
Mass.-Com. v. Chapman, 13 Metc.
68 (libel); Com. v. Hoxey, 16 Mass.
385 (disturbance of citizens assem-
bled in a town meeting).

V. Edgerton, 19
N. Y.-Loomis
Wend. 419 (malicious mischief); Peo.
v. Smith, 5 Cow. 258 (maliciously and
cow of another,
willfully killing a
although without any intent to steal).
N. C-State v. Perry, 50 N. C. 9,
69 AmD 768 (holding that one who.
by such abusive language toward
another as is calculated

as

a

was

89. Me.-Kanavan's Case, 1 Me. a dead body into a river without the rites of Christian sepulture was in226 (holding that the act of casting dictable at common law as an offense against common decency).

Mo.-State v. Rose, 32 Mo. 560 (inv. Appling, 25 Mo. 315, 69 AmD 469 utterance in public decent exposure of the person); State (holding that words grossly obscene in such a manner as to outrage decency and to be injurious to public morals, although lic indecency within the meaning of not an open and notorious act of pubthe statute, was indictable as a misdemeanor at common law).

Pa.-Barker v. Com., 19 Pa. 412; Com. v. Sharpless, 2 Serg. & R. 91, 7 AmD 632 (exhibition of obscene picture).

Tenn.-Britain v. State, 3 Humphr. 203 (permitting slave to go about in42 (utterance of obscene words in decently clad); Bell v. State, 1 Swan public).

casos, developments

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94

[25] c. Abrogation of Common Law. While an express statutory repeal of the common-law rules is rare," 93 in all of the states the common law has been impliedly repealed to a greater or less extent. A criminal statute embracing the whole subject matter implies an abrogation and repeals the common law on that subject,95 and if the provisions of the statute are so clearly repugnant to the rules of the common law as not to be reconcilable with them, the common law is repealed by implication." A statute does not impliedly repeal the common law where they are not inconsistent and both can stand.97 One act which in law amounts to an offense will not cease to be such because another act is merely declared by statute, without negative words or clearly implied negative intention, to amount to the same.98

96

[26] d. Effect in Construction of Statutes. The effect of the common law in the construction of statutes relating to offenses has been treated elsewhere in this work.99

Eng.-Rex v. Delaval, 3 Burr. 1434, 97 Reprint 913 (conspiracy to assign over a female apprentice for the purpose of prostitution); Rex v. Curl, Str. 788, 93 Reprint 849 (publication of an obscene book).

See Dead Bodies [13 Cyc 266]; Disorderly Conduct [14 Cyc 466]; Disorderly Houses [14 Cyc 479]; Lewdness [25 Cyc 209]; Obscenity [29 Cyc 1314]; Profanity [32 Cyc 578]. 90. Conn.-State v. Doud, 7 Conn. 384.

Ill-Slomer v. Peo., 25 111. 70, 76 AmD 786 (abuse of criminal process).

S. C.-State v. De Witt, 20 S. C. L. 282, 27 AmD 371 (any conspiracy to injure others by perverting, obstructing, or defeating the course of public justice in a criminal or civil proceeding by the suppression or fabrication of evidence).

Vt.-State v. Keyes, 8 Vt. 57, 30 AmD 450 (persuading witness not to attend a public prosecution).

Eng. Reg. v. Burgess, 16 Q. B. D. 141 (compounding felony).

See Barratry 7 C. J. p 925; Champerty and Maintenance 11 C. J. p 229; Compounding Felony 12 C. J. p 304; Embracery [15 Cyc 539]; Escape [16 Cyc 537]; Extortion [19 Cyc 35]; Obstructing Justice [29 Cyc 1392]; Rescue [34 Cyc 1631].

[§ 27] e. Reference to Common Law as to Procedure and Punishment. Where a statute makes an act criminal without prescribing any mode of prosecution or punishment, the common law prescribes prosecution by indictment and punishment by fine and imprisonment, and, subject to statutory and constitutional provisions, the whole proceeding must be conducted according to the course of the common law.3

[28] 3. Statutory Provisions a. Creation and Definition of Crime in General. The legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result; or it may group together various means by which the end may be accomplished and make any one of such means an offense when done to attain the object denounced by the statute." In the absence of provision to the contrary, a statute may punish an offense by giving it a name known to the common law, without further defining it, and the common-law definition will be applied. In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the legislature intended to prohibit and punish, otherwise it will be void for uncer

94.
See Common Law § 15.
95. See Common Law § 15.
96. See Common Law § 15.
[a] Especially does this rule apply
where not only the subject matter is
included but the common-law offense
is defined and enacted by a subse-
quent affirmative statute prescribing
the penalty therefor. State v. Boog-
her, 71 Mo. 631; State v. Dalton, 134
Mo. A. 517, 114 SW_1132.

97. See Common Law § 15.
98. Md.-State V. Buchanan,
Harr. & J. 317, 9 AmD 534.
Mass.-Com. v. Bagley, 7 Pick. 279;
Shattuck v. Woods, 1 Pick. 171; Run-
nells v. Fletcher, 15 Mass. 525.
Mo.-State v. Dalton, 134 Mo. A.
517, 114 SW 1132.

N. J.-State v. Norton, 23 N. J. L.
33.

S. C.-State v. DeWitt, 20 S. C. L. 282, 27 AmR 371.

Vt.-State v. Hildreth, 82 Vt. 382.
74 A 71, 137 AmSR 1022, 24 LRANS
551, 18 AnnCas 661.

99. See Common Law §§ 24, 25.
1. See Common Law § 25.

7

NE 1; State v. Quinlan, 86 N. J. L. 120, 91 A 111.

7. U. S.-U. S. v. Palmer, 3 Wheat. 610, .4 L. ed. 471; In re Greene, 52 Fed. 104; U. S. v. Jones, 26 F. Cas. No. 15,494, 3 Wash. C. C. 209.

D. C.-Crawford v. U. S., 30 App. 1 ("conspiracy" and "defraud" sufficient); Czarra v. District of Columbia Medical Suprs., 25 App. 443.

Ind.-Keefer v. State, 174 Ind. 588, 92 NE 656; Ledgerwood v. State, 134 Ind. 81, 33 NE 631; State v. Berdetta, 73 Ind. 185, 38 AmR 117; Ardery v. State, 56 Ind. 328; Hood v. State, 56 Ind. 263, 26 AmR 21; Cook v. State, 26 Ind. A. 278, 59 NE 49.

Iowa.-State v. Twogood, 7 Iowa

252.

La.-State v. Hayes, 105 La. 352, 29 S 937; State v. Hagan, 45 La. Ann. 839, 12 S 929.

Minn.-Benson v. State, 5 Minn. 19. Nebr.-State v. De Wolfe, 67 Nebr. 321, 93 NW 746; Smith v. State, 58 Nebr. 531, 78 NW 1059.

2. See statutory and constitution-16, al provisions.

3. Com. v. Cane, 2 Pars. Eq. Cas. 99
(Pa.) 265.

4. Cross references:
Construction of penal statute see
Statutes [36 Cyc 1180].

Oh.-Baker v. State, 12 Oh. St. 214. Okl.-State v. Lawrence, 9 Okl. Cr. 130 P 508.

Or.-State v. Stephanus, 53 Or. 135, P 428, 17 AnnCas 1146.

Tex.-Prindle v. State, 31 Tex. Cr. 551, 21 SW 360, 37 AmSR 833; Cross v. State. 17 Tex. A. 476; Ex p. Bergen, 14 Tex. A. 52; Robinson v. State,

Effect of partial invalidity see Stat-11 Tex. A. 309; Smith v. State, 7 Tex. utes [36 Cyc 984].

Ex post facto laws see Constitutional
Law § 803 et seq.

91. Walsh v. Peo., 65 Ill. 58, 16 AmR 569 (offer by public officer to receive a bribe): Com. v. Silsbee, 9 Mass. 417 (holding that it was a misdemeanor at common law for a citi-Power to define and punish see supra zen who was a legal voter at a town § 14 et seq. meeting to give in more than one Special or local laws see Statutes vote for a municipal officer); Com. v. [36 Cyc 1014].

V.

5. State v. Helton, 255 Mo. 170, 164 SW 457; Fessler v. State, (Okl. Cr.) 160 P 1129; State v. Lawrence, 19 Okl. Cr. 16, 130 P 508; Stewart v. State, 4 Okl. Cr. 564, 109 P 243, 32 LRANS 505.

McHale, 97 Pa. 397, 39 AmR 808 (of-Subjects and titles of acts see Stat-
fenses against the purity and fair- utes [36 Cyc 1035].
ness of public elections); Com.
Alexander, 4 Hen. & M. (14 Va.) 522
(intoxication or other misbehavior of
a justice of the peace while in the
discharge of his official duties); Com.
v. Callaghan, 2 Va. Cas. (4 Va.) 460
(corrupt agreement between justices
of the peace as to their votes for cer-
tain public officers). See also Bri-
bery 9 C. J. p 401; Elections [15 Cyc
442].

92. See Common Law §§ 25, 27-29. 93. See Albertson v. State, 5 Tex. A. 89 (where it was said that if a statute provides that no person shall be punished for offenses except those defined by statute, a commonlaw offense is not indictable).

[a] Effect of misnomer. That the designation of the crime of attempting to commit a criminal abortion as the "felony of abortion" is a misnomer does not invalidate Rev. St. (1909) § 4458 (L. [1907] p 230), wherein such language is used, since the specific acts constituting the crime are set out and make plain the legislative intent. State v. Helton,

255 Mo. 170, 164 SW 457.

6. Moore v. State, 183 Ind. 114, 107

A. 286. It was otherwise under a former statute which required all crimes to be expressly defined by statute. Frazier v. State, 39 Tex. 390; Fennell v. State, 32 Tex. 378; State v. Foster, 31 Tex. 578; Wolff v. State, 6 Tex. A. 195.

Vt.-State v. Cawley, 67 Vt. 322, 31 A 840.

Va.-Houston v. Com., 87 Va. 257, 12 SE 385.

See also Common Law §§ 24, 25. [a] The term "assault," for example, when used without qualification, has a clear and established import, so that it need not be defined in a statute relative thereto. Smith V. State, 58 Nebr. 531, 78 NW 1059.

[b] Bigamy.-A statute declaring that any person who shall be convicted of the crime of "bigamy" shall be imprisoned, etc., sufficiently defines an offense without defining the word "bigamy," as the word is universally understood, and a description of the offense would not express more than the word itself. State v.

68 [16 C. J.]

9

CRIMINAL LAW

A

"'un

tion of the evil intended to be prohibited.14
statute need not use the word "unlawful" or
lawfully," in defining an offense which it declares
shall be a misdemeanor, as this is equivalent to de-
claring the act unlawful.15

tainty. Reasonable certainty, in view of the con-
ditions, is all that is required, and liberal effect is
always to be given to the legislative intent when
possible; but where the legislature declares an of-
fense in words of no determinate signification, or
its language is so general and indefinite that it may
embrace not only acts commonly recognized as rep-
rehensible but also others which it is unreasonable
to presume were intended to be made criminal, the
statute will be declared void for uncertainty.10 The
[30] c. Necessity to Prescribe Penalty.
certainty required may be accomplished, as we have
has been held in some of the cases that where an
seen, by the use of words or terms of settled mean-
ing, or words which indicate offenses well known
It is not act is a crime solely by statute, and no penalty is
to and defined by the common law.11
necessary to use technical terms, 12 and the legis- prescribed in the statute, an indictment will be
quashed, or a judgment arrested; or in
words, that a description, definition, and denounce-
lature may designate the offense by using words
ment of acts necessary to constitute a crime do not
in common and daily use; 13 and a penal statute is
make the commission of such act or acts a crime
sufficiently certain, although it may use general
unless a punishment is annexed, for punishment is
terms, if the offense is so defined as to convey to a
person of ordinary intelligence an adequate descrip-
nection with Act [1884] No. 78); of the peace, sheriff or any other civil
meanor in the execution of either of
State v. Guiton, 51 La. Ann. 155, 24 officer shall be guilty of any misde-
S 784.
their respective offices, he shall on
conviction suffer fine," etc.); Augus-
tine v. State, 41 Tex. Cr. 59. 52 SW
"mob violence" was held to be un-
77, 96 AmSR 765 (where the term
discretion of the court).
certain and to leave too much to the

[§ 29] b. Necessity to Declare Act a Crime. The doctrine is well settled that, where the statute either makes an act unlawful or imposes a punishment for its commission, this is sufficient to make the act a crime without any express declaration to that effect.16 It

Hayes, 105 La. 352, 29 S 937.

[c] Public nuisance.-(1) Where a word or phrase had a definite meaning in the common law before the enactment of a statute which employs such word or phrase to designate a crime, as the phrase "public court in construing nuisance," the the statute will apply to such word or phrase its well ascertained meanCook v. State, ing at common law. (2) 26 Ind. A. 278, 59 NE 489, 490. And a statute' declaring all common nuisances to be criminal is to be construed as prohibiting and punishing every act which was by the coma nuisance. mon law indictable as State v. De Wolfe, 67 Nebr. 321, 93 NW 746.

8. Colo.-Dekelt v. Peo., 44 Colo. 525, 99 P 330. Ind.-Smith v. State, 115 NE 943; Trunk Grand Comm. V. State R. Western R. Co., 179 Ind. 255, 100 NE 852; Cook v. State, 26 Ind. A. 278, 59 NE 489. La.-State v. Comeaux, 131 La. 930, 60 S 620 (indecent assault). Or.-State v. Mann, 2 Or. 238, 241. Tex.-Augustine v. State, 41 Tex. Cr. 59, 52 SW 77, 96 AmSR 765. Wash.-State v. Stuth, 11 Wash. 423, 39 P 665; Foster v. Territory, 1 Wash. 411, 25 P 459.

Wis.-Brown v. State, 137 Wis. 543, 119 NW 338.

And see other cases infra this section.

9.

[d] Implied prohibition.-When, by
a declaratory provision, the legisla-
ture enacts that a thing may be done
adds a proviso that nothing
which before that time was unlawful,
and
therein contained shall be so con-
strued as to permit some matter em-
braced in the general provision to be
done, this is an implied prohibition
of such act, although before that
State v. Esk-
time it was lawful.
10. U. S. v. Reese, 92 U. S. 214, 23
ridge, 1 Swan (Tenn.) 413.
L. ed. 563; Ex p. Jackson, 45 Ark.
Medical Suprs., 25 App. (D. C.) 443;
158; Czarra v. District of Columbia
State v. Gaster, 45 La. Ann. 636, 12 S
739; Augustine v. State, 41 Tex. Cr.
59, 52 SW 77, 96 AmSR 765.

[a] The test to determine whether
a statute defining an offense is void
(1) is whether the
for uncertainty
language may apply not only to a
be little or no difference of opinion,
particular act about which there can
be radical differences,
but equally to other acts about which
thereby devolving on the court the
there
several
exercise of arbitrary power of dis-
classes of acts.
criminating

may

between

the
Czarra v. District
(2) The dividing line
(D. C.) 443.
of Columbia Medical Suprs., 25 App.
unlawful cannot be left to conjecture.
between what is lawful and what is
U. S. v. Capital Trac. Co., 34 App.
(D. C.) 592, 19 AnnCas 68; U. S. v.
Washington R., etc., Co., 34 App. (D.
C.) 599.

other

11. Crawford v. U. S., 30 App. (D. C.) 1; Czarra v. District of Columbia Medical Suprs., 25 App. (D. C.) 443; State v. Lawrence, 9 Okl. Cr. 16, 130 P 508. See supra note 7.

12. Hedderich v. State, 101 Ind., 564, 1 NE 47, 51 AmR 768.

13. U. S. v. U. S. Brewers' Assoc., 239 Fed. 163; State v. Quinlan, 86 N. er, 163 NYS 663 ("kosher"). J. L. 120, 91 A 111; Peo. v. Goldberg

[a] Federal Corrupt Practices Act. term "money contribution,' The used in the federal statute prohibiting such a contribution on the part of any national bank or any corporation organized by authority of any law of congress, in connection with U. S. v. not vague and uncertain and does not any election to any political office, is render the statute invalid. U. S.-U. S. v. Speeden, 27 F. U. S. Brewers' Assoc., 239 Fed. 163. Cas. No. 16,366, 1 Cranch C. C. 535. Cal.-Peo. v. Carroll, 80 Cal. 153, 22 P 129; In re O'Shea, 11 Cal. 568, 105 P 776.

14.

D. C.-U. S. v. Capital Tract. Co., 34 App. 592, 19 AnnCas 68.

Ind. Smith v. State, 115 NE 943;
NE 47, 51 AmR 768.
Hedderich v. State. 101 Ind. 564, 1

Mo.-Lowry v. State, 1 Mo. 722.
N. Y.-Peo. v. Coon, 67 Hun 523, 22
Okl.-State v. Lawrence, 9 Okl. Cr.
16, 130 P 508; Stewart v. State, 4 Okl.
NYS 865.
Tex.-Evans v. State, (Cr.) 22 SW
Cr. 564, 109 P 243, 32 LRANS 505.
18.

Wash.-State v. Stuth, 11 Wash. 423. 39 P 665; Foster v. Terr., 1 Wash. 411, 25 P 459.

Czarra v. District of Columbia Medical Suprs., 25 App. (D. C.) 443; State v. Keasley, 50 La. Ann. 761, 23 [b] The general principle was apS 900; State v. Lawrence, 9 Okl. Cr. 16. 130 P 508. [a] For example a statute provid-plied in Ex p. Jackson, 45 Ark. 158, or ing that any person who commits 164 (where the statute annulled made the public health, any act which grossly injures the it a misdemeanor to "commit any act or injurious to or property of another person grossly disturbs the public peace or public morals, or to the perversion health, or openly outrages public or obstruction of public justice, or U. S. v. Capital Tract. Co., 34 App. decency, is guilty of misdemeanor, is the due administration of the laws"); State v. (D. C.) 592, 19 AnnCas 68 (where a not void for uncertainty. statute making it a criminal offense Lawrence, 9 Okl. Cr. 16. 130 P 508; for any street railway company in Stewart v. State, 4 Okl. Cr. 564, 109 P 243. 32 LRANS 505. the District of Columbia to run insufficient number of cars to accomdesiring passage modate persons thereon without crowding the same was held too indefinite and uncertain in its definition of the offense sought to be created to support an information or indictment); Stoutenburgh v. Frazier, 16 App. (D. C.) 229, 234, 48 the police court, under an act of ConLRA 220 (where a party convicted in dissuspicious persons," gress authorizing the punishment of "all charged on a writ of habeas corpus); State v. Gaster, 45 La. Ann. 636, 638, S. D.-State v. Central Lumber Co., 12 S 739 (where the statute declared N. C. 1208, 24 SE 660, 32 LRA 396. void provided, "If any judge, justice

[b] "Wilful" in title but not in
be
cannot
statute
body of act.-A
construed independently of its title,
and if the word "willful" is used in
the title the statute is not unconsti-
tutional because the word does not
State v.
appear in the body thereof.
Keasley, 50 La. Ann. 761, 23 S 900.
be gathered
may
[c] Definition
from several statutes.-It is no ob-
jection that a statute denouncing an
act as a crime and providing a pun-
ishment therefor refers to another
statute for a fuller definition and ex-
State v. De
planation of the act.
La. 570, 33 S 605 (con-
Hart, 109
struing Rev. Civ. Code art 94, in

was

an

15.
16.

And see Statutes [36 Cyc 1183].
State v. Mulhisen, 69 Ind. 145.
U. S.-U. S. v. Joyce, 138 Fed.
Placer County, 90

Ga. A. 428,

455.
V.
Cal.-Dyer
Cal. 276, 27 P 197.
Ga.-Gray v. State,
Ind. Hedderich v. State, 101 Ind.
65 SE 191.
564, 1 NE 47, 51 AmR 768.

La-State v. Allen, 129 La. 733, 56
S 655, AnnCas1913B 454.

N. Y.-Peo. v. Brown, 16 Wend.

561.

N. C.-State v. Pierce, 123 N. C. 745, 31 SE 847; State v. Ostwalt, 118

later cases, developments and

17

as necessary to constitute a crime as its exact definition. But on the other hand, it is held that, where a statute prohibits any matter of public grievance or commands a matter of public convenience, although no penalty is prescribed for disobeying its prohibitions or commands, an indictment will be sustained and the offense punished by a fine.18 The crime and the punishment may be separated and distinguished by the legislature;19 one statute may create an offense, and another provide for its punishment.20

[§ 31] d. Gradation of Penalties. The gradation of penalties for offenses differing in their circumstances and surroundings is a matter wholly within the power and discretion of the legislature, which discretion, exercised within constitutional limits, is not subject to review by the courts.21

[32] e. Amendment of Statutes. The amendment of a criminal statute does not affect the prose

cution or punishment of a crime committed before the amendment became effective, but as to such crimes the original statute remains in force.22 An amendatory statute which simply defines the same offense in substantially the same language as that used in the statute amended does not take away the right of prosecution under the amended statute; the new statute is simply to be regarded as a continuation of the old.23

[§ 33] f. Repeal of Statutes-(1) What Constitutes Repeal. A penal law may, like any other statute, be repealed either expressly or by necessary implication;24 and such a statute is repealed by implication if a later statute is so repugnant to the earlier one that the two cannot stand together,25 or if the whole subject of the earlier statute is covered by the later one having the same object, and which was clearly intended to prescribe the only rules applicable to the subject.26 A repeal by

24 S. D. 136, 123 NW 504, 42 LRANS any public officer or on any person and declaring an increased penalty 804. holding a public trust or employment for a second conviction, affects, not [a] In Iowa the rule is so by stat-punishable as a misdemeanor, where the former statute, but only the ute. Bopp v. Clark, 165 Iowa 697, no special provision is made for form of the judgment. State v. Wil147 NW 172, 52 LRANS 493, AnnCas punishment, a railroad company bor, 1 R. I. 199, 36 AmD 245. 1916 E 417; State v. York, 131 Iowa which is a common carrier is indict- 24. See generally Statutes [36 635, 109 NW 122; State v. Conlee, 25 able for neglecting to obey an order Cyc 1071 et seq]. Iowa 237. of a court directing that it perform 25. U. S.-Pentlarge v. Kirby, 19 an act required by statute, although Fed. 501. the statute prescribes no penalty for Ala.-Henback v. State, 53 Ala. such neglect. Peo. v. Long Island R. 523, 25 AmR 650. Co., 134 N. Y. 506, 31 NE 873 [aff Ark.-Chamberlain v. State, 50 Ark. 58 Hun 412, 12 NYS 41]. 132, 65 SW 524.

17. U. S.-U. S. v. Crosby, 25 F. Cas. No. 14893, 1 Hughes 448.

Cal.-Ex p. Ellsworth, 165 Cal. 677, 133 P 272; Peo. v. McNulty, 93 Cal. 427. 26 P 597, 29 P 61 [writ of error dism 149 U. S. 645, 13 SCt 959, 37 L. ed. 882].

D. C.-Curry v. District of Columbia, 14 App. 423.

Fla.-Cribb v. State, 9 Fla. 409.
Ga.-Gibson v. State, 38 Ga. 571.
Ind.-Rosenbaum v. State, 4 Ind.

599.

N. Y.-Peo. v. Lunn, 81 Misc. 476, 143 NYS 401.

Or.-State v. Stephanus, 53 Or. 135, 99 P 428, 17 AnnCas 1146.

Porto Rico.-Peo. v. Aragon, 22 Porto Rico 741; Peo. v. Gallardo, 22 Porto Rico 142; Peo. v. Paratze, 22 Porto Rico 35.

[a] Statutes containing several sections. It is not necessary that each section of a statute shall contain or disclose a penalty for its infraction, but each may refer to the closing section of the act defining the crime, and the latter mode is applicable to all the antecedent sections. U. S. v. Crosby, 25 F. Cas. No. 14,893, 1 Hughes 448.

18. Jenkins v. State, 14 Ga. A. 276, 80 SE 688; Bopp v. Clark, 165 Iowa 697, 147 NW 172, 52 LRANS 493, AnnCas 1916 E 417; State v. Fletcher, 5 N. H. 257; Peo. v. Long Island R. Co., 134 N. Y. 506, 31 NE 873 [aff 58 Hun 412, 12 NYS 41]. To same effect U. S. v. O'Connor, 31 Fed. 449; Keller v. State, 11 Md. 525, 69 AmD 226; Peo. v. Shea, 3 Park. Cr. (N. Y.) 562; 2 Hawkins P. C. c 25 § 4; 2 Russell Crimes p 49.

[a] In Georgia, under the code definition of a crime, neither the imposition of a fine nor sentence of imprisonment is essential to constitute a crime. Jenkins v. State, 14 Ga. A. 276, 80 SE 688.

[b] In Iowa, by virtue of Code § 4905, which provides that "when the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor," where a statute prohibits an act without providing a penalty, such act constitutes a punishable misdemeanor. Bopp v. Clark, 165 Iowa 697, 701, 147 NW 172. 52 LRANS 493, AnnCas1916E 417; State v. York, 131 Iowa 635, 109 NW 122; State v. Conlee, 25 Iowa 237.

[c] In New York, under Pen. Code § 154. declaring every willful omission to perform a duty enjoined on

19. Palmer v. Lenovitz, 35 App. (D. C.) 303.

20. Palmer v. Lenovitz, 35 App. (D. C.) 303; Davis v. State, 51 Nebr. 301, 70 NW 984.

[a] Penalty prescribed by other sections of same code.-A criminal statute is not void for uncertainty which prescribes as a punishment for the doing of a certain act the same punishment that is prescribed for doing another named act, when the same code defines the latter act and prescribes its punishment. Davis v. State. 51 Nebr. 301, 70 NW 984 (construing Cr. Code § 53, which provides that, if one shall cause the death of another by displacing the fixtures of a railroad, he shall be guilty of murder either in the first or the second degree, or of manslaughter).

Cal.-Peo. v. Tisdale, 57 Cal. 104. Il-Kepley v. Peo., 123 Ill. 367; Sullivan v. Peo., 15 III. 233.

Ind. Johns v. State, 78 Ind. 332, 41 AmR 577; Ardery v. State, 56 Ind. 328; Huber v. State, 25 Ind. 175; Wall v. State, 23 Ind. 150.

Iowa.-State v. Smith, 7 Iowa 244. Ky.-Waddell v. Com., 84 Ky. 276, 1 SW 480, 8 KyL 249.

La.-State v. Jones, 127 La. 768, 53 S 985.

Mo.-State v. Taylor, 186 Mo. 608, 85 SW 564; State v. Green, 87 Mo. 583; State v. Draper, 47 Mo. 29.

Nebr.-State v. Moore, 48 Nebr. 870, 67 NW 876.

N. J.-State v. Camden, 50 N. J.. L. 87, 11 A 137.

N. Y.-Mark v. State, 97 N. Y. 572; Peo. v. Bull, 46 N. Y. 57, 7 Am R 302. Oh.-Robbins v. State, 8 Oh. St.

21. State v. Hogeiver, 152 Ind. 131. 652, 53 NE 921, 45 LRA 504.

22. Whatley v. State, 46 Fla. 145, 35 S 80; Britton v. State, 101 Miss. 584, 58 S 530; Jones v. State, 72 Tex. Cr. 504, 163 SW 81.

23. Sage v. State, 127 Ind. 15, 26 NE 667; State v. Hardman, 16 Ind. A. 357, 45 NE 345; Peo. v. Schoenberg, 161 Mich. 88. 125 NW 779; Hair v. State. 16 Nebr. 601, 21 NW 464; State v. Wish, 15 Nebr. 448, 19 NW 686.

"Principle forbids the conclusion that an amendatory statute defining an offence in substantially the same language as that employed in the statute it amends, takes away the right of the State to prosecute the offender, and requires his unconditional discharge. It can not be logically affirmed, where the same offence is defined in the same way by both the earlier and the later statute, that there is an interregnum in which there was no law defining the offence. Between the two acts there is no period of intervening time in which no offence existed. The duration of the statute was unbroken and continuous, and the crime one and the same. The amendatory act creates no new offence, nor does it absolve an offender from one previously committed.” Sage v. State, 127 Ind. 15, 20, 26 NE 667 [quot Peo. v. Schoenberg, 161 Mich. 88. 94, 125 NW 779].

[a] Change as to penalty.-An amendatory statute, providing a new method of distributing the penalty

Pa. Com. v. Brown, 7 Pa. Dist. 117, 20 Pa. Co. 139. Tenn.-Roberts v. State, 2 Overt.

423.

See generally Statutes [36 Cyc 1073].

[a] Repugnancy as to punishment. Where two criminal statutes on the same subject are repugnant as to the punishment, the earlier is repealed by implication, and an offense committed before the repeal cannot be punished under either statute. State v. Guillory, 127 La. 951, 954. 54 S 297 [cit Cyc]; State v. Jones, 127 La. 768, 53 S 985; State v. Hickman, 127 La. 442, 53 S 680; State v. Hicks, 113 La. 845, 37 S 776; State v. Callahan, 109 Ln. 946, 33 S 931. See also Statutes [36 Cyc 1096].

[b] If one section of a statute fixes the penalties for the offenses therein created by providing that they shall be the same as those "prescribed in the preceding section," the latter is, as to the penalties prescribed, a part of the former, and to that extent remains in force notwithstanding an express repeal. U. S. v. Lackey, 99 Fed. 952 [rev on other grounds 107 Fed. 114, 46 CCA 189, 53 LRA 660 (certiorari den 181 U. S. 621. 21 SCt 925, 45 L. ed. 1032)] (construing U. S. Rev. St. §§ 5506, 5507, the former of which was repealed by an act of 1894).

26. U. S.-U. S. v. Ranlett, 172 U. S. 133, 19 SCt 114, 43 L. ed. 393; U. S.

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