statute specify no other mode of proceeding.(r) And if the statute specify a mode of proceeding different from that by indictment, then if the matter were already an indictable offence at common law, and the statute introduced merely a different mode of proceeding and punishment, the remedy is cumulative, and the prosecutor has still the option of proceeding by indictment at common law, or by the mode pointed out by the statute. (s) Thus, a turnpike road company is liable to an indictment at common law for suffering their road to be out of repair, notwithstanding that by the terms of their charter a specific penalty is provided; if the charter contains no negative words, nor any thing from which it can be inferred that the legislature intended to take away the common law remedy.(t) But where the statute creates a new offence, by prohibiting and making unlawful any thing which was lawful before, and appoints a particular remedy against such new offence by a particular sanction and particular method of proceeding, such method of proceeding must be pursued, and no other.(u)

But the revised statutes contain a provision that where the performance of an act is prohibited by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing such act should be deemed a misdemeanor. (v) From this it follows, that if, in the same section, or any other section or statute, a penalty is inflicted for the violation of such statute, no indictment will lie for such violation, but an action at law for such penalty is the exclusive remedy.

If the statute make that a felony which before was a misdemeanor only, the misdemeanor is merged and cannot be prosecuted. (w)

Common nuisances, are offences against the public order and economical regimen of the state, to the annoyance of the public in general. If the annoyance is only to some particular person, and not to the community in general, it is only a private nuisance, and is a subject of civil action only. (x) All nuisances of a public nature, though occasioned by acts in themselves innocent, are indictable as misdemeanors, if the nuisance be the probable consequence of the act.(y) Obstructing a highway, is within this rule. (2) So is drunkenness, if it is open and exposed to public view. (a) Offensive or dangerous trades or manufactures, are indictable as nuisances; and it is not necessary to prove that they are

(r) Arch. Cr. Pl. 2. 2 R. S. 696, § 39.
(s) Id. ib. 1 Russ. on Cr. 48.
(t) 15 Wend. 267.

(u) 1 Russ. on Cr. 48. 2 Burr. 805.
(v) 2 R. S. 696, § 39.

(w) Arch. Cr. Pl. 2. 13 Wend. 159.
(x) Stephen's Cr. L. 102.
(y) Arch. 2.

(z) 10 Serg. & Rawle, 345.
(a) 3 Murphy, 229.

offensive to health, if they are offensive to the senses. (b) But it must appear either that they are destructive to health, or make the dwellings of the inhabitants uncomfortable. (c) If the annoyance is only to a few inhabitants of a particular place, no indictment lies. (d) If a man sets up a noxious trade, remote from houses, &c. and afterwards new houses, &c. are built, he may lawfully continue the trade, though a nuisance to the new comers.(e) Exposing in a public thoroughfare a person infected with a contagious disease, has also been decided to be a misdemeanor. (f) Keeping disorderly houses, bawdy houses, gaming houses, unlicensed booths and stages for rope dancers, mountebanks, and the like, are also misdemeanors coming under the head of nuisances.(g) And so of lotteries; keeping gunpowder in too large quantities near to a town; eavesdropping; common scolding, &c.(h)

Indictment for nuisance.] The indictment ought to describe the situation of, and state the place where, the nuisance was committed. (1) Laying it to be near a highway, and also near several dwelling houses, &c. is sufficient.(k) Where a thing is not in itself a nuisance, but becomes so by particular circumstances, the indictment should show the special matter, and not conclude to the common nuisance, &c. (1) The indictment must not conclude to the damage of an individual only. (m) The defendant cannot object to the indictment till he has pleaded to it ;(n) and if a party indicted for a nuisance continue the same, he may be again indicted for such continuance. (o)

Selling unwholesome provisions is a misdemeanor at common law.(p) Refusing to serve an office.] To refuse, without lawful excuse or exemption, to serve a public office, (such as that of constable or overseer,) is a misdemeanor at common law, punishable with fine and imprisonment.(g)

Cheats.] To constitute a cheat or fraud an indictable offence at common law, it must be such a fraud as would affect the public-such a deception as common prudence cannot guard against; as by using false weights and measures, or false tokens, or where there is a conspiracy to cheat.(r) So where a person got possession of a promissory note, by

pretending that he wished to look at it, and then carried it away and refused to deliver it to the holder, this was held to be merely a private fraud, and not punishable criminally at common law. (s) By the statute, however, obtaining money or property by false pretences, or tokens, is punishable as a felony.(t)

A justice of the peace is indictable for misbehavior in his office when he acts partially or oppressively, from malicious or corrupt motives. Thus discharging an offender without requiring sufficient sureties, when it is done with intent to prevent the course of law and justice, is clearly an indictable offence. (u)

Torturing a prisoner, to extort a confession, is a misdemeanor at common law. (v)

Voluntary intoxication of one of the grand jury, during the sitting of the grand jury, and thereby disqualifying himself for the discharge of his official duties, is also indictable.(w)

An indictment will not lie in the following cases. For setting a person on the footway in a street to distribute handbills, whereby the footway was impeded and obstructed; nor for throwing down skins into a public way, by which a personal injury is accidentally occasioned; nor for acting as a justice of the peace, not being qualified; nor for selling short measure; nor for excluding commoners by enclosing; nor for an attempt to defraud, if neither by false tokens or conspiracy; nor for secreting another; nor for bringing a bastard child into the parish; nor for entertaining idle and vagrant persons in the defendant's house; nor for keeping a house to receive women with child and deliver them.(x)

With regard to trespasses, it has been held that a mere act of trespass, (such as entering a yard and digging the ground, and erecting a shed,) committed by one person unaccompanied by any circumstances constituting a breach of the peace, is not indictable.(y) Neither is it an indictable offence to pull the thatch off another's house, who is in the peaceable possession of it.(z) And an indictment for taking away chattels must import that such a degree of force was used as to make the taking an offence against the public. (a) But where the indictment stated the entering a dwelling house, and with force and arms, and with strong hand turning out the prosecutor, the court held that it would lie.(b) And an indictment will lie for taking goods forcibly, if such taking be proved to

(8) 14 John. 371.

(t) 2 R. S. 676. Ante, 128.
(u) 15 Wend. 277.
(v) 2 Tyler, 380.

(w) Addis. Rep. 29.

(x) 1 Russ. on Cr. 49, 50.
(y) Id. 52.

(z) Id. ib. 3 Burr. 1706.
(a) 1 Russ. on Cr. 51.
(b) Id. ib. 3 Burr. 1699.

be a breach of the peace; and though such goods are the prosecutor's own property, yet if he take them in that manner he will be guilty. (c) But an indictment will not lie for taking up and removing a corner stone in the boundary line between A. and B., with intent to injure and endamage the said B.(d) So, cutting and girdling fruit trees is not an indictable offence at common law. (e)

Besides the offences above adduced as examples, there are a great variety of other common law misdemeanors. To undertake an enumeration of the whole would be a task almost endless, and altogether unprofitable. Many of those to which we have alluded are now defined and expressly provided for by statute; and they are only made use of in this connexion, by way of showing the general tenor and spirit of the common law in respect to what constitutes a misdemeanor.

It ought to be further observed, perhaps, that a.barc intention, however wicked, is not indictable; but in all cases where the intent to commit a crime is accompanied by any overt act, the party may be prosecuted for an attempt to commit the offence in case it was not consummated. (f)

The mere soliciting another to commit a felony is a misdemeanor at common law, punishable by fine or imprisonment.(g) The soliciting must be proved in the same manner as the offence of an accessary before the fact, (h) with the exception that in this case it is not necessary to prove the felony committed. If it appears that the person solicited to commit the offence actually did commit it, the person soliciting must be acquitted; for in that case the misdemeanor would merge in the felony.(i)

(c) 3 Salk. 187.

(d) 2 Halst. R. 426.

(e) 3 Greenl. 177.

f) Archb. Cr. Pl. 2. 1 Deacon, 643. Walker's Int. 443.

(g) Crown Cir. Comp. 457.

(h) See post, tit. Principals and Accessaries.

(i) 2 East's Rep. 5. 1 Russ. on Cr. 45.

CHAPTER II.

Misdemeanors by Statute.

The following are some of the offences specified by the revised statutes as being misdemeanors.

Petit larceny.] Stealing the personal property of another of the value of $25 or under.(a) Punishment, imprisonment in the county jail not exceeding six months, or by fine of not more than $100, or both such fine and imprisonment. (2 R. S. 690, § 1.)

Attempts to extort money, &c.] Threatening, either verbally or by written or printed communication, to accuse another of any offence, with intent thereby to extort any property or any pecuniary benefit whatever. (Id. ib. § 2.)

Being parties, &c. to fraudulent conveyances.] Being a party to any conveyance or assignment of any estate or interest in lands, goods, or things in action, or of any rents or profits issuing therefrom, or to any charge on any such estate, &c. made or created with intent to defraud prior or subsequent purchasers, or to hinder, delay or defraud creditors or other persons; or willingly putting the same in use, as having been made in good faith, by a person privy to or knowing of such conveyance, &c. (Id. ib. § 3.)

Concealing estate by insolvent debtors.] Insolvents applying for the benefit of any of the insolvent acts, wilfully concealing, 1. Any part of their estate or effects, or any books or writings relative thereto, either before or after the execution of any assignment; or 2. Concealing and not disclosing to the court or officer before whom their petitions may be pending, any debts or demands which they shall have collected, or any transfer of their real or personal estate which they may have made after presenting to such court or officer a schedule of their estate. (Id. 691, § 4.) Buying lands in suit.] Any officer, judicial or ministerial, or other person, taking a conveyance of any lands, &c. or of any interest or estate

(a) If the value of the property stolen is more than $25, the offence is a felony,

and is called grand larceny, as we have before seen, ante, p. 146.