H. Rich had been found guilty on another indictment, but had not been sentenced, and might have been called as a witness. The judges (except Lord Lyndhurst, C. B., and Taunton, J.) (b) were 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. (c) 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 manner as if the principal was then on his trial. (d) 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. (e) 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. (f) 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. (g) 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.' (h) In the same case, Erle, J., held that what Hawkey said after the duel relating to what passed at the spot where the duel took place was not admissible. As to harbouring thieves, &c., in public-houses and brothels, see 34 & 35 Vict. c. 112, ss. 10-11, Prevention of Crimes Act (1871), and 39 & 40 Vict. c. 20 § 5. Punishment of principals in the second degree and accessories under the Consolidation Acts. By the 24 & 25 Vict. c. 96 (the Larceny Consolidation Act), s. 98, in case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act (except only a receiver of stolen property) shall, on conviction, be 119. (b) Who were absent. (c) R. v. Turner, R. & M. 347. 1 Lewin, (d) Ratcliffe's case, 1 Lewin, 121. (e) Anonymous, cited in R. v. Turner, supra. (f) R. v. Hansill, 3 Cox, C. C. 597. liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this Act shall be liable to be indicted and punished as a principal offender. Each of the Consolidation Acts, 24 & 25 Vict. c. 97 (Malicious Injuries to Property Act), s. 56; c. 98 (Forgery Act), s. 49, contains the following clause: 'In the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act shall, on conviction, be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this Act, shall be liable to be proceeded against, indicted, and punished as a principal offender.' As to the punishment of principals in the second degree and accessories under the Act relating to coin, see 24 & 25 Vict. c. 99, s. 35, post-under the 24 & 25 Vict. c. 100 (the Offences against the Persons Act), sec. 67, ante, p. 184-under the Act relating to piracy, see 7 W. 4 & 1 Vict. c. 88, s. 4, post — under the Act relating to the Post Office, see 7 W. 4 & 1 Vict. c. 36, s. 35-under the Explosive Substances Act, see 46 Vict. c. 3, s. 7, post. 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. - . Felony defined. 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 (a) 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. (b) 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. (c) What words in a statute create a felony. 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. (d) And where a statute declares that the offender shall, (a) This forfeiture is now abolished, 33 & 34 Vict. c. 23, noticed ante, p. 108. (b) 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. (c) 4 Blac. Com. 98. R. v. Johnson, 3 M. & S. 549. (d) 1 Hale, 703. 1 Hawk. P. C. c. 40, s. 2. R. v. Horne, 4 Cox, C. C. 263. AMERICAN NOTE. 1 As to felonies in America, see Weaver v. C., 5 Casey, 445; Wilson v. S., 1 Wis. 184; S. v. Decon, 65 N. C. 572. It seems that different States in America have different rules. In some States there is no such division of crimes as "felony " and "misdemeanor," and May's 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. (e) 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. (f) An enactment that an offence shall be felony, which was felony at common law, does not create a new offence. (g) 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. (h) 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. (2) 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. (k) 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 a former statute, and the same consequence follows from altering the procedure and the punishment. (7) 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. (m) Where a statute makes an offence felony which was before only a misdemeanor, an indictment would not lie for it as a misdemeanor. (n) Misdemeanors defined. — 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. (0) 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 (e) By Bayley, J., in Johnson's case, 3 M. & S. 556.1 (f) R. v. Salomons, R. & M. 292, overruling R. v. Cale, R. & M. 11. (g) Per Patteson, J., R. v. Williams, 7 Q. B. 253. () 1 Hawk. P. C. c. 40, s. 3. (7) Michell v. Brown, 2 E. & E. 267, and see R. v. Cator, 4 Burr. R. 2026. (m) 1 Hawk. P. C. c. 40, s. 4. (n) R. v. Cross, 1 Ld. Raym. 711, 3 Salk. 193. See R. v. Gregory, L. R. 1 C. C. R. 77; but it must be clear that the same offence is intended. (0) 3 Burn. Just., tit. Misdemeanor, citing Barlow's Justice, tit. Misdemeanor. AMERICAN NOTE. 1 It would seem that the word 'feloniously in a statute in America will not of itself make the crime a felony. C. v. BarVOL 1.-13 low, 4 Mass. 439. See Mead v. Boston, 3 Cush. 404. to felony, as perjury, battery, libels, conspiracies, and public nuisances. (p) 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 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. (q) But generally misprision of felony is taken for a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law, or by statute; (r) and silently to observe the commission of a felony, without using any endeavours to apprehend the offender, is a misprision; a man being bound to discover the crime of another to a magistrate with all possible expedition. (s) 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. (t) Indictable offences. 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, misbehaviour by public officers, and all other misdemeanors whatsover of a public evil example against the common law, may be indicted. (u) It has recently been held that an indictment will always lie for contempt of court, (v) but it seems doubtful whether every contempt is indictable. In an early case, Holt, C. J., said, 'If a witness be insolent we may commit him for the immediate contempt or bind him to his good behaviour, but we cannot indict him.' (w) It seems, however, to be an established principle, that whatever openly outrages decency and is injurious to public morals, is a misdemeanor at common law. (c) Thus the exposure of a man's person (v) R. v. Judge of Brompton County Court (1893), 2 Q. B. 195. As to what conduct amounts to contempt, see In re Bahamas (1893), A. C. 138. (w) R. v. Rogers, 7 Mod. 28. See R. v. Nun, 10 Mod. 186. (x) Blac. Com. 65 (n.), 13th edit. 1 Hawk. P. C. c. 5, s. 4. 1 East, P. C. c. 1, s. 1, and see R. v. Sir Charles Sedley, Sid.168. 1 Keb. 620, and R. v. Crunden, 2 Campb. 89. Cases of men indecently exposing their naked persons. AMERICAN NOTE. 1 In America, whatever amounts to a public wrong is indictable. See R. v. Teischer, 1 Dall. 335. As to offences by public officers, see S. v. Williams, 12 Ired. 172; S. v. Buxton, 2 Swan, 57. Among many acts which have been held to be indictable at common law in America, are the exhibition of obscene pictures, C. v. Sharpless, 2 Serg. & R. 91; uttering obscene words, Bell v. S., 1 Swan, 42; casting a corpse into a river, Kanavan's case, 1 Greenl. 226; repeated drunkenness, Hutchinson v. S., 5 Humph. 142; throwing a carcase into a well, S. v. Bachman, 8 N. H. 203; keeping a dangerous amount of gunpowder, P. v. Sands, 1 Johns. 78; terrifying women, Hen derson's case, 8 Gratt. 708; C. v. Taylor, 5 Binn. 281; selling unwholesome meat, Goodrich v. P., 3 Parker, C. R. 622; disobeying an order of legislature, Keller v. S., 11 Md. 525; Moon v. S., 9 Yer. 353; misconduct by justices of the peace, Wickersham v. P., 1 Scam. 123; S. v. Johnson, 1 Brev. 155; soliciting a witness not to give evidence, S. v. Keyes, 8 Vt. 57; S. v. Carpenter, 20 Vt. 9; challenging to fight a duel, C. v. Tibbs, 1 Dana, 524. But private injuries are not indictable. See Smith v. C., 4 P. F. Smith, 209 (soliciting to commit adultery); S. v. Wheeler, 3 Vt. 344; Illies v. Knight, 4 Tex. 312; P. v. Smith, 5 Cowan, 258; C. v. Warren, 6 Mass. 72. |