Coveneigh, Style 346; Cooper v. Witham, 1 Sid. 375, and 1 Lev. 247; Crosby v. Leng, 12 East 409; White v. Spettigue, 13 M. & W. 603. 1 Chit. Crim. Law, 5.

The Source, Whence the Doctrine Took Its Rise in England, is well known. By the ancient common law, felony was punished by the death of the criminal, and the forfeiture of all his lands and goods to the crown. Inasmuch as an action at law against a person, whose body could not be taken in execution and whose property and effects belonged to the king, would be a useless and fruitless remedy, it was held to be merged in the public offense. Besides, no such remedy in favor of the citizen could be allowed without a direct interference with the royal prerogative. Therefore a party injured by a felony could originally obtain no recompense out of the estate of a felon, nor even the restitution of his own property, except after a conviction of the offender. * ** But these incidents of felony, if they ever existed in this state, were discontinued at a very early period in our colonial history. Forfeiture of lands or goods, on conviction of crime, was rarely, if ever, exacted here; and in many cases, deemed in England to be felonies and punishable with death, a much milder penalty was inflicted by our laws. Consequently the remedies, to which a party injured was entitled in cases of felony, were never introduced into our jurisprudence. Without regard, however, to the causes which originated the doctrine, it has been urged with great force and by high authority,

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That the Rule Now Rests on Public Policy; 12 East 413, 414; that the interests of society require, in order to secure the effectual prosecutions of offenders by persons injured, that they should not be permitted to redress their private wrongs, until public justice has been first satisfied by the conviction of felons; that in this way a strong incentive is furnished to the individual to discharge a public duty, by bringing his private interest in aid of its performance, which would be wholly lost, if he were allowed to pursue his remedy before the prosecution and termination of a criminal proceeding.

The whole system of the administration of criminal justice in England is thus made to depend very much upon the vigilance and efforts of private individuals. There is no public officer, appointed by law in each county, as in this commonwealth, to act in behalf of the government in such cases, and take charge of the prosecution, trial and conviction of offenders against the laws. It is quite obvious that, to render such a system efficacious, it is essential to use means to secure the aid and co-operation of those injured by the commission of crimes, which are not requisite with us.

On the Other Hand, in the absence of any reasons, founded on public policy, requiring the recognition of the rule, the expediency of its adoption may well be doubted. If a party is compelled to await the determination of a criminal prosecution before he is permitted to seek his private redress, he certainly has a strong motive to stifle the prosecution and compound with the felon. Nor can it

contribute to the purity of the administration of justice, or tend to promote private morality, to suffer a party to set up and maintain in a court of law a defense founded solely upon his own criminal act. The right of every citizen, under our constitution, to obtain justice promptly and without delay, requires that no one should be delayed in obtaining a remedy for a private injury, except in a case of the plainest public necessity. There being no such necessity calling for the adoption of the rule under consideration, we are of opinion that it ought not to be engrafted into our jurisprudence. We are strengthened in this conclusion by the weight of American authority, and by the fact that in some of the states, where the rule had been established by decisions of the courts, it has been abrogated by legislative enactments. Pettingill v. Rideout, 6 N. H. 454; Cross v. Guthery, 2 Root (Conn.) 90; Piscataqua Bank v. Turnley, 1 Miles (Pa.) 312; Foster v. C., 8 W. & S. (Pa.) 77; Patton v. Freeman, Coxe (1 N. J. L.) 113; Hepburn's case, 3 Bland (Md.) 114; Allison v. Farmers' Bank of Virginia, 6 Rand. (Va.) 204, 223; White v. Fort, 3 Hawks (10 N. Car.) 251; Robinson v. Culp, 1 Treadw. L. (S. C.) 231; Story v. Hammond, 4 Ohio 376; Ballew v. Alexander, 6 Humph. (25 Tenn.) 433; Blassingame v. Glaves, 6 B. Monr. (Ky.) 38. Rev. Sts. of N. Y. Part. 3, c. 4, § 2. St. of Maine of 1844, c. 102. Judgment on verdict. Boston & W. Ry. Co. v. Dana, 1 Gray 83, Kn. 20.

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(Fla. Sup. Ct., 1891.) Plea of Prosecution Pending. In an action for $10,000 damages for causing the burning of a cotton gin house and machinery, defendant pleaded that the cause of action for which recovery was sought was a felony, that defendant had been indicted therefor, and that the indictment was still pending, wherefore plaintiff's suit should be abated. A demurrer to this plea was held properly sustained, because the government needs no aid from the citizen in criminal prosecutions, and there is no forfeiture of goods for felony, which were the reasons for the rule in England, that civil actions could not be maintained against the felon, for injuries arising out of the felony. Williams v. Dickenson, 28 Fla. 90, 9 So. 847, Kn. 18.

§ 31. There are three grades of crime as to enormity-treasons, felonies, and misdemeanors.

§ 32. By the common law, if the same act or series of acts constituted a misdemeanor and a felony, the smaller offense was merged in the greater.

(Conn. Sup. Ct. of Errors, 1889.) Conspiracy to Steal-What is Felony. Information for conspiracy with another to steal. Defend

ant was convicted and sentenced, and appealed. She excepted to the refusal of the court to instruct the jury that the conspiracy was merged in the theft committed; and the theft being proved, no conviction could be had for the conspiracy. ANDREWS, C. J. *

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The broad claim of the appellant is, that if the crime to commit which the conspiracy is formed is actually committed, then the conspiracy is merged in the committed crime and ceases itself to be a crime at all. It is admitted, however, that if the contemplated crime be of that class of crimes called misdemeanors, the conspiracy is not merged; and that in a case where there is a conspiracy to commit a misdemeanor and the misdemeanor is actually committed, the offender may be punished for the conspiracy and for the misdemeanor also. But it is insisted that if the contemplated crime is of that class called felonies, then if the felony is actually committed the conspiracy is merged and no longer exists as a separate and distinct offense. * The force of the argument comes largely from the use of the word "felony,' and in giving to it the same meaning it had in the common law. Originally the term imported all those offenses of which the feudal consequence was the forfeiture of all the offender's land and goods; to which, in later times, capital or other punishment was sometimes added. In American law the word has no clearly defined meaning except as it is given a meaning by some statute. Mr. Bishop in his treatise on Criminal Law (7 Ed.), § 814, after discussing the rule that a conspiracy merges in a felony, remarks: "The doctrine, the reader perceives, is contrary to just principle; it has been rejected in England, and though there may be states in which it is binding on the courts, it is not to be deemed the general American law." absence of statutory graduation there is no test by which to determine the grade of crimes other than the punishment which may be inflicted. Conspiracy may be punished by imprisonment in the state prison for a term not exceeding five years and by a fine not exceeding five hundred dollars. Larceny to any value less than fifteen dollars can be punished by no more than thirty days in the county jail and a fine of not more than seven dollars. By this test conspiracy is much the greater crime. Nor are the ingredients of conspiracy the same as of theft. Theft may be committed by one person as well as by two or more; it requires some physical act in the nature of a trespass by which the possession of the thing stolen is taken from the owner, and the act must be accompanied by the intent of the thief to deprive the owner of his property. On the other hand conspiracy cannot be committed except by two or more persons. Upon the whole examination we are of opinion, upon principle as well as upon authority, that this conviction for a conspiracy to commit theft ought to be sustained, although the evidence by which it was proved, proved also that the theft had been actually committed. Affirmed. S. v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121, Kn. 109.

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In the

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(Mich. Sup. Ct., 1893.) Conviction of Lesser Crime Contained in Charge of Greater. Abbott appeals from conviction of rape on a girl of 10 years with her consent. LONG, J. The court also erred in instructing the jury that they must convict the respondent of rape if at all. The information for rape also contained a charge of the offense of assault with intent to commit the crime of rape, and an assault and battery; and the jury should have been instructed that they might convict him of either of the lesser offenses. How. St. § 9428, provides: "Upon an indictment for any offense consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense inferior to that charged. in the indictment, or of any attempt to commit such offense." In P. v. McDonald, 9 Mich. 149, it is said: "It is a general rule of criminal law that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of a lesser grade, if contained within it." The provision of the statute above quoted was cited in that case. It was settled in Hanna v. P., 19 Mich. 316, that under an information charging rape it is competent to find the respondent guilty of an assault with intent to ravish. New trial granted. P. v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. Rep. 360.

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THE TWO PRIMARY ELEMENTS OF A CRIME.

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§ 33. Ordinarily there can be no crime without a union of these two elements: 1, the mens rea or criminal intent; and, 2, the corpus delicti or criminal act. This principle is expressed in the maxim: Actus non facit reum, nisi mens sit rea.

CHAPTER III.

THE CRIMINAL INTENT.

NATURE AND KINDS OF INTENT.

$34. General Statement, 84.

§ 35. "Criminal Intent is the State of Mind of the Criminal," 85.

§ 36. "At the Time of Committing the Crime," 89.

§ 37. "Distinguished from the Motive," 90.

§ 38. "Intent to do Some Other Illegal Act," 94.

§ 39. "Natural Consequence." 99.

$40. "Criminal Neglect of Duty" and "Natural Consequence," 101.

§ 41. "States of Mind Must be Found to Convict," 101.

§ 42. "That the Breach of Legal Duty Shall be Criminal Regardless of any Intent," 103.

$43. "Specific Intent Which Must Generally be Direct," 105.

§ 44. To a Certain Extent May be Supplied by Construction from a Similar Purpose," 106.

IMPEDIMENTS TO FORMATION OF CRIMINAL INTENT.

§ 45. General Statement, 109.

§ 46. "That the Defendant is a Corporation." 110.

§ 47. "That the Act was Compelled," 111.

§ 53.

§ 48. "Of the Command of a Husband to His Wife," 111.

§ 49. "Of the Command of any Other to His Subordinates." 114.

§ 50. "Of Actual Duress by Persons without Authority," 117.

§ 51. "Of Necessity of Self-Preservation in Other Cases," 120.

§ 52. "Of Inability of Defendant to Perform His Legal Duty," 125. "That the Defendant was Mistaken as to the Facts," 126. § 54. "That the Defendant was Mistaken as to the Law," 134. $55. "That the Defendant was an Infant," 138.

$56. "That the Defendant was Idiotic or Demented," 141. § 57. "That the Defendant was Intoxicated," 143,

§ 58. That the Defendant was Insane," 150.

NATURE AND KINDS OF INTENT.

$ 34. General Statement. Criminal intent is the state of mind of the criminal at the time of committing the crime, essential to criminality in the particular case, to be carefully distinguished from the motive which induces him to do the act, and is of two principal kinds: general and specific. The general intent may be any one of the following: 1, a direct intent to do the criminal act; 2, an intent to do some other illegal act, from the doing of which the criminal act results as an unforeseen but natural consequence; or, 3, a criminal neglect of a legal duty, irrespective of any actual intent, from which neglect the criminal act results as a natural consequence, which is also known as constructive intent, but which we will call negative intent. One or another of these states of mind must be found to convict of any crime, unless the legislature has expressly or by plain implication declared that