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BOOK II.

Of Misdemeanors.

CHAPTER 1.

Misdemeanors at Common Law.

As we have before remarked, a misdemeanor is any crime less than a felony; and the terms "misdemeanor" and "felony" are generally used in contradistinction to each other. If the offence is not punishable by imprisonment in a state prison, or by death, it is a misdemeanor. (a)

Misdemeanors, as well as felonies, are of two kinds: 1. At common law; 2. By statute.

For although a great variety of offences, amounting to misdemeanors, are enumerated in the revised statutes, yet it was not the intention of the revisers to mention particularly every offence of this grade. Besides those especially provided for in the statute, 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.

In these instances, where the statute book is entirely silent, it is frequently a point of great embarrassment, to determine whether the accusation amounts to a crime or not. Wherever a question on this subject arises, if, after all the lights which the justice can gather from works on criminal law and from experienced counsel, he still entertains serious and well grounded doubts as to the offence being indictable, it would be the safer course for him to discharge the complaint.

(a) Ante, p. 20. 4 Black. Com. 5, n. (5).

In considering the subject of misdemeanors, we propose, in this Chapter, to submit some general remarks and illustrations relative to misdemeanors at common law, as calculated to afford some aid in this branch of a justice's duty. And, in carrying out this plan, we intend, without going into unnecessary detail merely to lay down a few general rules on the subject, in order to enable the justice to decide whether the offence charged, in any case brought before him, is a misdemeanor or not.

In the next chapter, we shall notice misdemeanors by statute. Whatever amounts to a public wrong is said to be indictable ;(b) and if it is not a felony, may be punished as a misdemeanor at common law, unless otherwise provided by statute. Thus, misprisons and all other contempts, all disturbances of the peace, oppressions, misbehavior by public officers, and all other misdemeanors of public evil example against the common law may be indicted. (c) But an injury of a mere private nature, committed upon an individual, cannot be made the subject of a criminal prosecution; unless it in some way concerns the public, or is accompanied by circumstances which either amount to, or tend directly towards producing a breach of the peace.(d)

Acts injurious to private persons, however, committed through a spirit of wanton cruelty or revenge, which tend to excite violent resentments and thus produce a disturbance of the peace, are misdemeanors, and punishable at common law.(e) Offences of this class are usually arranged in the books upon criminal law under the head of malicious injury or mischief. Blackstone defines malicious mischief to be an act "done not animo furandi, or with an intent of gaining by another's loss; which is some, though a weak excuse; but either out of a spirit of wanton and deliberate cruelty or black and diabolical revenge."(f) The offence is distinguishable from an ordinary trespass or private injury in this; that it is not only a violation of private right without color or pretence, but without the hope or expectation of gain. It discovers, moreover, a degree of moral turpitude dangerous to society, and is an evil example of a most pernicious tendency, inciting also to a breach of the peace.(g) Unlawfully and secretly entering the dwelling of another in the night time, and there making a great noise and disturbance, so as to frighten the wife of the owner of the house, and cause her to miscarry, has been held a malicious mischief within the above doctrine. (h) Also breaking

(b) 1 Dallas, 388. 2 P. A. Browne's

Rep. 251.

(c) 1 Russ. on Cr. 43.

(d) Id. 44. Arch. Cr. Pl. 3.

(e) 5 Cowen, 58, 9. 5 Binn. 281.

(f) 4 Black. Com. 243.

(g) Per Curiam. Woodworth, J. 5 Cowen, 259.

(h) 5 Binn. 281.

windows, by throwing stones at them, or otherwise ;(i) or breaking in pieces a cutter, the property of another; (k) or discharging a gun at wild fowl, with knowledge and warning that the report will affect injuriously the health of a sick person near by, and such effect is produced. (1) So, injuring a tree belonging to the public, if useful for public convenience or ornament, has been held a public offence and punishable as a misdemeanor.(m) Maiming cattle appears in England not to have been held indictable, at common law. (n) But the rule seems to be otherwise in this country. Thus, it has been decided that to wilfully kill a domestic animal, as a horse or cow, the property of another; (0) or to confine colts, and from motives of wicked and malicious mischief, fix a sharp instrument at the place of their escape, and then, with intent to wound, maim, and destroy them, to force them over such instrument whereby they are wounded,(p) are misdemeanors at common law. So, outrageous cruelty to a dumb beast, shocking to the feelings of humanity, is a misdemeanor, even though the offender be the owner of the animal.(g) Maiming and cruelty to animals are expressly declared to be misdemeanors however, by statute. (r) And upon the same principle of malicious mischief, poisoning a dog, poisoning chickens, and several other kindred offences have been held misdemeanors in Pennsylvania, independent of any statute. (s) Poisoning a cow also, in Massachusetts ;(t) and horses or cattle, in England. (u) But the revised statutes make this offence a felony.(v)

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. (w) As indecent exposures of one's person to public view ;(x) keeping a bawdy house ;(y) or letting a house with intent that it be used as such ;(z) publishing an obscene print or book, or getting up an indecent exhibition. (a) And as to the latter offence it has been held in Pennsylvania that the exhibition need not be charged to have been

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made in public. If it is averred that it was made to sundry persons, for money, it is sufficient. (b) Casting a dead body into a river without the rites of christian sepulture is also a misdemeanor at common law. (c) So, arresting a dead body and thereby preventing a burial in due time; (d) publicly selling and buying a wife(e) and digging up dead bodies or selling them (f) are misdemeanors at common law. But by statute the latter species of offence is now a felony.(g)

Adultery is not an indictable offence at common law; nor can an indictment be maintained for living in adultery, by charging it as an offence against public decency;(h) unless the act is committed in public, or there is a conspiracy.(i)

All offences against the public peace, not amounting to felony, are misdemeanors at common law; as riots, routs, affrays, assaults and batteries, &c.(k) We shall proceed to define these offences in this place.

1st. Riots and routs.] If three or more persons assemble together, with an intent mutually to assist each other against any one who shall oppose them in the execution of some enterprise of a private nature, with force or violence against the peace, or to the manifest terror of the people, whether the act intended were of itself lawful or unlawful, and though they afterwards depart of their own accord without doing any thing, it is an unlawful assembly. If after their first meeting they move forward towards the execution of their intended purpose, whether they actually execute it or not, this according to general opinion is a rout. And if they put it in execution then it is a riot.(1)

And if any person encourages, promotes, or takes part in riots, whether by words, signs or gestures, or by wearing the badges or ensigns of the rioters, he is considered a rioter; for in this case all are principals. It is not necessary, to constitute the crime, that personal violence be committed. (m) Being armed, using threatening speeches, turbulent gestures, or the like, suffices for this. (n) Yet where the object of the assembly is lawful, it generally requires stronger evidence of the tenor of the means used, to induce a jury to find the defendants guilty, than if the object were unlawful; and it has even been holden that if a number of persons assemble for the purpose of abating a public nuisance, and appear with spades and other tools for that purpose and abate it accordingly, without

(b) 2 Serg. & Rawl. 91.

(c) 1 Greenl. 226.

(d) 4 Black. Com. 65, n.

Rep. 465.

(e) 3 Burr. 1438.

4 East's

(f) 4 Black. Com. 65, n. 2 T. R. 733. (g) 2 R. S. 688.

(h) 2 Bailey, 159.
(i) 5 Rand. 627.

(k) 4 Black. Com. 141.
(1) 1 Hawk. P. C. ch. 65, § 1.
(m) 2 Camp. 370.

(n) 1 Hawk. ch. 65, § 5.

doing more, it is no riot;(o) unless threatening language or other misbehavior, in apparent disturbance of the peace, be at the same time used.(p) If persons meet on any lawful occasion, and on a dispute arising they form themselves into parties with promises of mutual assistance, and then fight, it is a riot; for the design to break the peace is as premeditated as if they had originally met for that purpose.(q)

To a riot there must be three or more persons. Therefore if the jury acquit all but two, and find them guilty, the verdict is void, unless they are indicted together with other rioters unknown.(r) But where six persons were indicted for a riot, of whom two died before trial, two were acquitted and two convicted, on the objection that the two convicted were not indicted together with other persons unknown, Lord Mansfield said, "two are found guilty of a riot; consequently it must have been with one or both of those who have not been tried, or it could not have been a riot."(s)

2d. Affrays.] An affray is where persons meet at a fair or wake, or any other lawful and innocent occasion, and on a sudden quarrel they fight together.(t) It is necessary that the parties fight in a public highway, street or market, &c. If the contest be in private it is an assault and battery merely, and not, an affray.(u)

3d. Assaults and batteries.] An assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at him with or without a weapon; or presenting a gun at him at such a distance to which the gun will carry; or pointing a pitchfork at him, standing within the reach of it; or by holding up one's fist at him, in an insulting manner; or any other act indicating an intention to use violence against the person of another.(v) So, striking at another with a cane, stick or fist, although the party striking misses his aim ;(w) drawing a sword or bayonet, or throwing a bottle or glass, stones, water, or other liquor, with intent to wound or strike; these are assaults.(x) So if a master take indecent liberties with a female scholar, though she does not resist, it is an assault.(y) If a medical man unnecessarily strip a female patient naked, pretending that he cannot otherwise judge of her illness, it is an assault if he himself take off her clothes.(z) So if parish officers cut off the hair of a pauper in the poor house, by force and against her

(0) Dalt. c. 137.

p) Ib. id.

(4) 1 Hawk. P. C. ch. 65, s. 3.

2 id. ch. 47, s. 8.

(s) 3 Burr. 1262.

(t) 1 Hawk. ch. 65, s. 3. Matt. Dig.

(u) Matt. Dig. Cr. L. 370.
(v) 1 Hawk. P. C. ch. 62, s. 1.
w) 2 Ro. Abr. 545, 1. 45.
(x) Com. Dig. Battery, C.
(y) Russ. & Ry. C. C. 130.
(z) Ry. & Moo. C. C. 19.

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