A TREATISE, &c. BOOK I. Of Crimes in General; and of Felonies. CHAPTER I. Of Crimes in General. A crime has been defined to be an act committed or omitted in violation of a public law, either forbidding or commanding it. (a) Our revised statutes have affixed a precise technical meaning to the terms "crime" and "offence," by declaring that when used in any statute, they shall be construed to signify any offence for which any criminal. punishment may, by law, be inflicted. (b) And the term "infamous crime" includes every offence punishable with death or by imprisonment in the state prison.(c) Crimes, both by statute and at common law, are divided into two great classes, viz. felonies and misdemeanors. In this chapter, we propose to show the leading characteristics of each species of offence, and the distinction between the two classes. The remainder of the First Book will be devoted to Felonies; and, in the Second Book, we shall treat of Misdemeanors. (a) 4 Black. Com. 5. (b) 2 R. S. 702, § 33. ous" and "criminal," and "felonious- (c) Id. ib. § 32. But by an amend- ymous. See 2d ed. § 31. ment to the statute, the words "feloni And, first, we shall proceed to state the principal points respecting felonies. The term felony, originally embraced all offences which, at common law, were followed by a total forfeiture of goods or lands, or both.(d) And notwithstanding that in our state this ingredient in the punishment of offences was long since almost entirely abolished, yet the term "felony" continues to be used as denoting nearly the same crimes which were included by it before their common law characteristic of forfeiture was taken from them. By the revised statutes, it is now provided that the term "felony, when used in any statute, "shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison." (e) In order, therefore, to determine whether any given offence be a felony or not, we have only to inquire what grade of punishment is affixed to it. If it be punishable with death, or with imprisoment in the state prison, absolutely, whether for a long or a short time, it is clearly a felony. There are, however, many cases in which the punishment is in a measure confided to the discretion of the tribunal pronouncing the sentence; and where the offender may be sentenced to imprisonment either in the state prison or in a county jail. We have heard it questioned whether offences punishable in this alternative mode could be regarded as coming within the above statutory definition of felony. But inasmuch as, in all these cases, the offender is liable to punishment by imprisonment in the state prison, the offence is as distinctly a felony as though the court had no discretion, and the punishment were imprisonment in the state prison only. Felonies are of two kinds: 1. At common law: 2. By statute. A great number of offences are recognized as felonies by the common law, independent of any statutory enactments, and are divided by an ancient writer into offences against the life of another, as murder, manslaughter, felo de se, &c.; against his habitation, as burglary, arson, or house-breaking; and against public justice, as breach of prison, &c. (f) Several species of crimes coming under the general denomination of felonies are defined, and the punishment thereof prescribed in the first chapter of the fourth part of the revised statutes. (g) As it is not declared in the revised statutes, however, that no other offences than those there enumerated shall be deemed felonies, there can be no doubt that (d) 4 Black. Com. 95. 1 Russ. on Cr. 42. (e) 2 R. S. 702, § 30. (f) 3 Inst. 1. whatever was a felony at common law, previous to the adoption of those statutes, is still indictable as such. But by a subsequent section of the same chapter, all punishments prescribed by the common law for any offence specified in that chapter, and for the punishment of which provision is therein made, are prohibited. (h) We do not, however, recollect any common law offences, excepting misdemeanors, which are not embraced in the chapter of the revised statutes referred to; and it appears by the note of the revisers, to this last mentioned section, that it was their intention to include every known offence of a higher grade than misdemeanors. (i) The question has been frequently raised, more especially since the revision of our laws, whether an indictment should be drawn as at the common law, or should appear to be founded upon a statutory provision which is applicable to the offence. In determining this question, the following rules are to be observed: Where an offence is created by statute, or the statute declares a common law offence, committed under peculiar circumstances, not necessarily included in the original offence, punishable in a different manner from what it would be punished without such circumstances—or where the nature of the common law offence is changed by statute from a lower to a higher grade; as where a misdemeanor is declared a felony, the indictment must be drawn in reference to the provisions of the statute, and conclude contra formam statuti; but where the statute is only declaratory of what was previously an offence at common law, without adding to or altering the punishment, the indictment need not conclude contra formam, &c.(k) With regard to felonies created by statute, it seems clear that not only those crimes which are made felonies in express words, but also those crimes which are to be punished by death, or imprisonment in the state prison, by any statute, become felonies thereby, whether the word "felony" be mentioned or omitted. (1) Where a statute makes an offence felony, which was before only a misdemeanor, it cannot be punished as a misdemeanor.(m) 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," &c., it shall amount to no more than a high misdemeanor.(n) (h) Id. 701, § 16. (i) Revisers' Notes, part 4, p. 89. (k) People v. Enoch, 13 Wend. Rep. 173. 2 Binn. Rep. 339. 6 id. 182. (1) 1 Russ. on Cr. 42. (m) 1 Ld. Raym. 711. 3 Salk. 193. (n) 1 Hawk. P. C. ch. 40, § 3. Where an offence is created by statute, which was not an offence by the common law, it is a general rule, that the indictment must charge the offence to have been committed under the circumstances, and with the intent mentioned in the statute, which of course contains the only appropriate definition of the crime.(0) A new felony created by statute has all the incidents it would have at common law. Therefore, the procurors or abettors are principals or accessories upon the same circumstances which would make them so at common law; though the act be silent as to abettors or accessories.(p) Misprison of felony is a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law or by statute; and silently to observe the commission of a felony without using any endeavors to apprehend the offender, is a misprison-a man being bound to discover the crime of another to a magistrate with all possible expedition.(g) 2. MISDEMEANORS. A misdemeanor is any crime less than a felony; and the terms "felony" and "misdemeanor" are generally used in contradistinction to each other.(r) If the offence, therefore, is not punishable in any event by imprisonment in the state prison, or by death, it is a misdemeanor. A variety of misdemeanors are enumerated in the first chapter of the fourth part of the revised statutes. (s) And in various other parts of the revised statutes a great number of offences are declared to be misdemeanors. Besides these, there are a great many offences of a public nature which do not depend upon, and which are not defined by any statute, but which are nevertheless misdemeanors, and punishable at common law. Whatever amounts to a public wrong, is said to be indictable; and if it is not a felony, may be punished as a misdemeanor, at common law, unless otherwise provided by statute. (t) It may, perhaps, be well to observe, in this place, that not only the actual commission of offences prohibited by law, is punishable, but likewise all attempts to commit such offences.(u) Thus, it is provided by the revised statutes, that every person who shall attempt to commit an offence prohibited by law, and in such attempt shall do any act towards (0) 2 Yerger, 22. 1 Bailey, 144. (p) 1 Leach, 76. (9) 1 Russ. on Cr. 43. 1 Hawk. P. C. ch. 20, s. 2, and ch. 50, s. 1, 2. (r) Id. ib. (s) 2 R. S. 689, &c. (t) 1 Russ. on Cr. 43. 1 Dall. 388. 2 Browne's R. 251. (u) 1 Russ. on Cr. 44. the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same; upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows: 1. If the offence attempted to be committed be such as is punishable by the death of the offender, the person convicted of such attempt shall be punished by imprisonment in a state prison not exceeding ten years. 2. If the offence so attempted be punishable by imprisonment in a state prison for four years or more, or by imprisonment in a county jail, the person convicted of such attempt shall be punished by imprisonment in a state prison, or in a county jail, as the case may be, for a term not exceeding one half the longest term of imprisonment prescribed upon a conviction for the offence so attempted. 3. If the offence so attempted be punishable by imprisonment in a state prison for any term less than four years, the person convicted of such attempt shall be sentenced to imprisonment in a county jail for not more than one year. 4. If the offence so attempted be punishable by a fine, the offender shall be liable to a fine not exceeding one half of the largest amount which may be imposed upon a conviction for the offence so attempted. 5. If the offence so attempted be punishable by imprisonment and by a fine, the offender may be punished by both imprisonment and fine not exceeding one half of the longest time of imprisonment and one half of the greatest fine which may be imposed, upon a conviction for the offence so committed.(v) But no person shall be convicted of an attempt to commit an offence when it shall appear that the crime intended or the offence attempted was actually perpetrated. (w) Nor when it shall appear that he has been previously acquitted on a trial for the principal offence.(x) A person may be convicted of an attempt to commit an offence, upon an indictment for the commission of the crime itself. (y) An attempt to commit a statutory misdemeanor, as, an indecent assault, is indictable as a misdemeanor.(z) (v) 2 R. S. 698, § 3. (w) Id. 702, § 26. (x) Id. Ib. § 28. (y) Id. Ib. § 27. |