by the record that everything in the former proceeding was rightly and properly transacted must, it is conceived, give way to facts manifestly and clearly proved; and that as against the accessory the conviction of the principal will not be conclusive, being as to him res inter alios *acta.(u) This was the opinion of Mr. [*76 J. Foster; and upon this opinion the Court, in a case at the Old Bailey, permitted the counsel for an accessory to controvert the propriety of the conviction of the principal by viva voce testimony, and to show that the act done by the principal. did not amount to a felony, and was only a breach of trust.(v) And in a later case, in the same Court, it was also admitted that the record of the conviction of the principal was not conclusive evidence of the felony against the accessory, and that he has a right to controvert the propriety of such conviction.(w)

But how far an accessory can defend himself in point of fact, by showing that the principal was totally innocent, has been considered as a question of more difficulty, and one which should be handled with caution; because facts for the most part depend upon the credit of witnesses; and when the strength and hinge of a case happen to be disclosed, as they may be by one trial, daily experience convinces us that witnesses for very bad purposes may be too easily procured. Upon this point, however, Mr. J. Foster eites some authorities, which he apprehends to be strong, to show that the accessory may insist upon the innocence of the principal; and then says, "if it shall manifestly appear, in the course of the accessory's trial, that in point of fact the principal was innocent, common justice seems to require that the accessory should be acquitted: A. is convicted upon circumstantial evidence, strong as that sort of evidence can be, of the murder of B.; C. is afterwards indicted as accessory to this murder; and it comes out upon the trial, by incontestible evidence, that B. is still living (Lord Hale somewhere mentions a case of this kind). Is C. to be convicted or acquitted? The case is too plain to admit of a doubt. Or, suppose B. to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the Court and jury, that the witnesses against A. were mistaken in his person (a case of this kind I have known), and that A. was not, nor could possibly have been, present at the murder." (x)

Upon an indictment against an accessory, a confession by the principal is not admissible to prove the guilt of the principal; it must be proved aliunde, especially if the principal be alive, and could be called as a witness; and it seems that even the conviction of the principal would not be admissible to prove the guilt of the principal. The prisoner was indicted for receiving sixty sovereigns, which had been stolen by S. Rich. A confession by S. Rich, made before a magistrate in the presence of the prisoner, in which she stated various facts implicating the prisoner, was tendered in evidence. Mr. J. Patteson refused to receive anything that was said by S. Rich respecting the prisoner, but admitted what she said respecting herself only. S. Rich had been found guilty on another [*77 indictment, but had not been sentenced, and might have been called as a witness. The judges (except Lord Lyndhurst, C. B., and Taunton, J.)(y) were unanimously of opinion that Rich's confession was no evidence against the prisoner; and many of them appeared to think that had Rich been convicted, and the indictment against the prisoner stated not her conviction, but her guilt, the conviction would not have been any evidence of her guilt, which must have been proved by other means.(z) And upon the authority of this case, where an accessory before the fact to a murder was tried after the principal had been convicted and executed, Parke, B., ordered the proceedings to be conducted in the same (u) Fost. 365.

(v) Smith's case, 1 Leach 288.

(w) Prosser's case (mentioned in a note to Smith's case, 1 Leach 290). Cor. Gould, J., who is considered to have been a very accurate crown lawyer: Rex v. Blick, 4 C. & P. 377 (17 E. C. L. R.), S. P., Bosanquet, J. And see Rex v. M'Daniel and others, 19 St. Tri. 806.

(z) Fost. 367, 368; and see 3 Esp. R. 134 (in the case of Cook v. Field), where it was stated by Bearcroft, and assented to by Lord Kenyon, that where the principal had been convicted, it is nevertheless on the trial of the accessory competent to the defendant to prove the principal innocent. And see Rex v. M.Daniel and others, 19 St. Tri. 806. () Who were absent.

(2) Rex v. Turner, R. & M. C. C. R. 347; 1 Lewin 119.

manner as if the principal was then on his trial, and the evidence against the accessory was not gone into until the case against the principal was concluded.(a) Where two persons were indicted together, one for stealing and the other for receiving, and the principal pleaded guilty, Wood, B., refused to allow the plea of guilty to establish the fact of the stealing by the principal as against the receiver.(b) The prisoner was indicted as an accessory after the fact to one Mills, who was charged with sending letters demanding money with menaces, and Erle, J., held that these letters were admissible in evidence against the accessory, for it was necessary to prove a demand of the money, and these letters constituted the demand. They were, therefore, evidence of acts done. It would have been very different if they had been mere written statements made by Mills that she had made a demand. They could not then be admitted against the prisoner. (c) And where Read was indicted as accessory before the fact to Simpson, and conversations with Simpson in the absence of Read were offered in evidence, Maule, J., refused to admit them.(d) And where on an indictment against Hawkey and Pym for murder, Pym was tried first, and Hawkey was alleged to have fired the fatal shot in a duel, it was held that it might be proved that Hawkey on the morning before the duel had said, "I will shoot him as I would a partridge." Erle, J., saying, "this statement is an act indicating malice aforethought in Hawkey, and that is a fact which the jury have to ascertain. The intentions of a person can only be inferred from external manifestations, and words are some of the most usual and best evidence of intention. It is not a declaration after the act done narrating the past, but it shows the mind of the party."(e) In the same case Erle, J., held that what Hawkey had said after the duel relating to what passed at the spot where the duel took place was not admissible.(ƒ)

*78]

*CHAPTER THE FOURTH.

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.

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, formerly, if a statute made any new offence felony, the law implied that it should be punished with death as well as with forfeiture, unless the offender prayed the benefit of clergy, which all felons were entitled once to have, unless the same was expressly taken away by statute.(b)

(a) Ratcliffe's case, 1 Lewin 121.

(d) Reg. v. Read, 1 Cox C. C. 65.
(f) Ibid.

(b) Anonymous, cited in Rex v. Turner, supra. (c) Reg. v. Hansill, 3 Cox C. C. 597. (e) Reg. v. Pym, 1 Cox C. C. 339. (a) 4 Blac. Com. 95, and see 1 Hawk. c. 25, s. 1. "The higher crimes, rape, robbery, murder, arson, &c., were called felony; and being interpreted want of fidelity to his lord, made the vassal lose his fief:" 2 Hume, App. ii. p. 129. As to the derivation of the word felony, from feah, or fee, the fief or estate, and lon, the price or value; and ascribing to it the meaning of pretium feudi, see Spelm. Gloss. Felon, 4 Blac. Com. 95.

(b) 4 Blac. Com. 98; Rex v. Johnson, 3 M. & S. 549. Post, vol. 2, p. 464; but now

With regard to felonies created by statute, it seems clear that 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) So where a statute says that an offence, previously a misdemeanor, "shall be deemed and construed to be a felony," instead of declaring it to be a felony in distinct and positive terms, the offence is thereby made a felony.(e) An *enactment [*79 that an offence shall be felony, which was felony at common law, does not create a new offence (f) An offence shall never be made felony by the construction of any doubtful and ambiguous words of a statute; and therefore, if it be prohibited 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.(g) 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.(h) Where therefore a statute made an offence punishable with death and a subsequent statute imposed a forfeiture of twenty pounds for the same offence when first committed recoverable before justices of the peace, and made the second offence felony, the latter statute was held to be a virtual repeal of the former.(i) If also a later statute expressly alters the quality of an offence by making it a misdemeanor instead of a felony, the offence cannot be prosecuted under the former statute, and the same consequence follows from altering the procedure and the punishment.(k)1

And 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.(7) Where a statute makes an offence felony which was before only a misdemeanor, an indictment would not lie for it as a misdemeanor.(m)

The word misdemeanor, in its usual acceptation, is applied to all those crimes and offences for which the law has not provided a particular name; and they may be punished, according to the degree of the offence, by fine or imprisonment, or both (n) 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 not amount to felony, as perjury, battery, libels, conspiracies and public nuisances.(0) 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

every person convicted of any felony, for which no punishment is specially provided, is punishable by penal servitude for seven years, or imprisonment, &c., under the 7 & 8 Geo. 4, c. 28, s. 8, supra, p.'3, 4.

(c) 1 Hale 703; 1 Hawk. P. C. c. 40, s. 2; Reg. v. Horne, 4 Cox C. C. 263.

(d) By Bayley, J., in Johnson's case, 3 M. & S. 556.

(e) Rex v. Salomons, R. & M. C. C. R. 292, overruling Rex v. Cale, R. & M. C. C. R. 11. (f) Per Patteson, J., Reg. v. Williams, 7 Q. B. 253 (53 E. C. L. R.).

(g) 1 Hawk. P. C. c. 40, s. 3.

(i) Rex v. Davis, 1 Leach 271.

(h) 1 Hawk. P. C. c. 40, s. 5.

(k) Michell v. Brown, 2 E. & E. 267 (105 E. C. L. R.), and see Rex v. Cator, 4 Burr. R. 2026. (2) 1 Hawk. P. C. c. 40, s. 4.

(m) Rex v. Cross, 1 Ld. Raym. 711; 3 Salk. 193.
(n) 3 Burn. Just., tit. Misdemeanor, citing Barlow's Justice, tit. Misdemeanor.
(0) 4 Blac. Com. 5, note 2; 3 Burn. Just., tit. Misdemeanor.

1 As to what constitutes a felony, see State v. Decon, 65 N. C. 572; People v. War, 20 Cal. 117; People v. Cornell, 16 Ibid. 187; Tharp v. Comm. 3 Met. (Ky.) 411; Buford v. Comm. 14 B. Mon. 24; Wilson v. State, 1 Wis. 184; State v. Bosse, 8 Rich. 276; Weaver r. Comm., 5 Casey 445.

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.(p) But generally misprision of felony is taken for a concealment of felony, or a procuring the concealment thereof, *80] *whether it be felony by the common law, or by statute;(q) and silently to observe the commission of a felony, without using any endeavors to apprehend the offender, is a misprision; a man being bound to discover the crime of another to a magistrate with all possible expedition. (r) 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 fact.(s)

It is clear that all felonies, and all kinds of inferior crimes of a public nature, as misprisions, and all other contempts, all disturbances of the peace, oppressions, misbehavior by public officers, and all other misdemeanors whatsoever of a public evil example against the common law may be indicted. (t) 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. (u) Thus the exposure of a man's person in a public place is indictable.(v) 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 (w) But no injuries of a private nature are indictable, unless they in some way concern the king.(x)1

(p) 1 Hawk. c. 20, s. 2, and c. 50, s. 1, 2; Burn. Just., tit. Felony. (g) 1 Hawk. P. C. c. 59, s. 2. Post, Book II. Chap xiii. (r) 3 Inst. 140; Hale 371-375. (8) 1 Hawk. P. C. c. 59, s. 6. 4 Blac. Com. 121; 3 Inst. 133. (t) 2 Hawk. P. C. c. 25, s. 4. Chap. xiv.

The concealment of treasure trove is misprision of felony :

As to misbehavior by public officers, see post, Book II.,

(u) Blac. Com. 65 (n), 13th edit.; 1 Hawk. P. C. c. 5, s. 4; 1 East P. C. c. 1, s. 1, and see Rex v. Sir Charles Sedley, Sid. 168; 1 Keb. 620; and Rex v. Crunden, 2 Campb. 89. Cases of men indecently exposing their naked persons.

(v) Reg. v. Holmes, Dears. C. C. R. 207, and other cases, post, Nuisance.

(w) 2 Hawk. P. C. c. 25, s. 4, and see 1 Hawk. P. C. c. 22, s. 5, where it is laid down that every contempt of a statute is indictable. But it is questionable, where the party offending has been fined, if he may afterwards be indicted: and where a statute extends only to private persons, or chiefly relates to disputes of a private nature, it is said that offences against it will hardly bear an indictment: 2 Hawk. P. C. c. 25, s. 4.

(x) 2 Hawk. P. C. c. 25, s. 4.; Rex v. Richards, 8 T. R. 637. This distinction is stated also to have been taken in Rex v. Bembridge & Powell (cited in Rex v. Southerton, 6 East 136), who were indicted for enabling persons to pass their accounts with the Payoffice in such a way as to enable them to defraud the Government. It was objected, that this was only a private matter of account, and not indictable: but the Court held otherwise, as it related to the public revenue.

1 Among many other acts which have been held indictable at common law in conformity to the principles stated in the text are: The exhibition of obscene pictures: Comm. v. Sharpless, 2 Serg. & R. 91; the utterance of obscene words in public: Bell v. State, 1 Swan 42; letting a house for purposes of prostitution: Comm. v. Harrington, 3 Pick. 26; Smith v. State, 6 Gill 425; casting a dead body into the river without the rites of sepulture: Kanavan's case, 1 Greenl. 226; repeated acts of open drunkenness: Tipton v. State, 2 Yerg. 542; Hutchinson v. State, 5 Humph. 142; State v. Debosq, 5 Ired. 371; throwing dead carcase into a well: State v. Buckman, 8 N. H. 203; keeping a large quantity of gunpowder People v. Sands, 1 Johns. 78; going armed with unusual weapons: State". Huntley, 3 Ired. 418; contra, Simpson v. State, 5 Yerg. 306; terrifying women: Henderson's case, 8 Grattan 708; Comm. v. Taylor, 5 Binn. 281; selling unwholesome meat: Goodrich v. People, 3 Parker C. R. 622; whatever amounts to a public wrong: Resp v. Teischer, 1 Dall. 335.

If a statute enjoin an act to be done without pointing out any mode of punishment, an indictment will lie for disobeying an injunction of the legislature: Keller v. State, 11 Md. 525; Moon v. State, 9 Yer. 353; State v. Evans, 7 Gill. & Johns. 290.

Acts of official misconduct by justices of the peace, done with corrupt motives, are

an infant

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.(y) Where an indictment stated that W., of tender years," was placed "under the care and control of" the prisoners as a servant, and that it was their duty to supply her with sufficient food, &c., [*81 and also to permit her to have sufficient food, &c., and that they neglected to supply her with sufficient food, &c., and refused to permit her to have sufficient food, &c.; whereby her health was injured. W. was between fourteen and seventeen years of age during the time of the ill-treatment alleged, and it did not appear that she was prevented from going out and complaining of the treatment she received. It was held, first, that W. was not an infant of tender years. A person of tender years is a person incapable of acting or judging for himself. And children of much earlier age may contract marriage and other relations, and are competent in law to act for themselves. Secondly, that the terms "under the care and control" of the prisoners meant under such control as to be prevented from acting for herself, and that this girl was a free agent; and, therefore, the indictment was not proved.(z)

In these cases it must be both alleged and proved that the health was injured. The indictment alleged that the prisoner was the mother, and had the care of an infant female child unable to support itself, and that it was the duty of the prisoner

(y) Rex v. Friend and his Wife, MS. Bayley, J., and R. & R. 20. Chambre, J., differed, thinking it not an indictable offence, but a matter founded wholly on contract, in this which was the case of an apprentice. The indictment should state the infant was of tender years, and not able to provide for itself. And see Rex v. Ridley, 2 Campb. 650; Rex v. Squire and other cases, post, Murder. As to the neglect of paupers by overseers of the poor, see post, Offences by persons in office.

(z) Anonymous, 5 Cox C. C. 271, Coleridge and Cresswell, JJ. "If being of ordinary or even superior intellect and capacity, she was so under the control of the defendants, so impressed with fear either from being watched or being threatened, as to be unable to resort to the assistance of her natural defenders or of other persons, then a duty would devolve on the defendants greater than that arising from the civil contract:" per Cresswell, J.

indictable offences: Wickersham v. People, 1 Scam. 123; State v. Johnson, 1 Brevard 155; People v. Coon, 15 Wend.

When a public law imposes a public duty, the omission to perform the duty is indictable; but if it is not an absolute duty, but a conditional one, dependent upon the honest exercise of the judgment of the person or persons, to whom it is submitted, whether it is to be performed or not, the omission to perform it is not per se, an indictable offence: State v. Williams, 12 Ired. 172.

While it is true that every culpable neglect of duty, enjoined on a public officer, either by common law or by statute, is an indictable offence, yet the presentment in such case, unless the act of the officer is clearly illegal, must show with sufficient certainty, that it proceeded from corrupt or culpable motives: State v. Buxton, 2 Swan 57. Disobedience to an act of assembly is an indictable offence at common law: Gearhart v. Dixon et al., 1 Barr 224. When the statute forbids the doing an act and prescribes a penalty recoverable by action, this excludes punishment by indictment: State v. Mase, 6 Humph. 17. Where the statute contains a general prohibitory clause, even if a specific remedy had been given by a subsequent clause, and no mention had been made of indictment, it may well be maintained that an indictment would lie for the misdemeanor contained in a violation of the prohibition: State v. Thompson, 2 Strob. 12. A person indicted for an offence created by statute cannot be convicted after a repeal of the statute, unless the repealing statute contains a saving clause, &c.: Taylor v. State, 7 Black. 93.

Solicitation to commit adultery is not indictable: Smith v. Comm., 4 P. F. Smith 209; contra, State v. Avery, 7 Conn. 267; but solicitation of a witness not to attend a public prosecution is indictable: State v. Keyes, 8 Verm. 57; State v. Carpenter, 20 Ibid. 9; Comm. v. Reynolds, 14 Gray 87; words expressing a desire to fight with deadly weapons, may be so Comm. v. Tibbs, 1 Dana 524; what are only private injuries are not indictable: Comm. v. Warren, 6 Mass. 72; Comm. v. Kearney, 1 Ibid. 137; Comm. v. Morse, 2 Ibid 139; Comm. v. Bangs, 9 Ibid. 387; Comm. v. Edwards, 1 Ashm. 46; People v. Jackson, 3 Denio 101; Illier v. Knight, 4 Texas 312; Wright v. People, 1 Breese 66; Lewis v. Comm. 2 S. & R. 552; Brown's case, 3 Greenl. 177; People v. Smith, 5 Cowan 258; State . Wheeler, 3 Verm. 344.