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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 “for

" ** feiting 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. (e) 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. And it should also be observed, that 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. (g) Where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor. (h)

The word misdemeanor, in its usual acceptation, is applied to all Misdemeanors 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. (i) 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 to felony, as perjury, battery, libels, conspiracies, and public nuisances. (k) Misdemeanors have been sometimes termed misprisions : indeed, the word misprision, in Misprisions. 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 guily of felony or treason may be proceeded against for a misprision only, if the king please. (D) 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; (m) 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. (n) 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. (o)

It is clear that all felonies, and all kinds of inferior crimes of a Indictable ofpublic nature, as misprisions, and all other contempts, all disturb- fences. ances of the peace, oppressions, misbehaviour by public officers, and all other misdemeanors whatsoever of a pulbic evil example against the common law, may be indicted. (p). And it seems to be an established principle, that whatever openly outrages decency, and is in(e) I Hawk. P. C. c. 40, s. 3.

1, 2. Burn. Just. tit. Felony. ( 1 Hawk. P. C. c. 40, s. 5.

(m) 1 Hawk. P. C. c. 59, s. 2, Post, (g) 1 Hawk. P. C. c. 40, s. 4.

Book II. Chap. xiii. () Rex v. Cross, I Ld. Raym. 711,3 (n) 3 Inst. 140. 1 Hale, 371-375. Salk. 193.

(0) 1 Hawk. P. C. c. 59, s. 6. The (i) 3 Burn. Just. tit. Misdemeanor, citing concealment of treasure trove is misprision Barlow's Justice, tit. Misdem.

of felony. 4 Blac. Com. 121; 3 Inst. 133. (K) 4 Bla. Com. 5, note 2. 3 Burn. (p) 2 Hawk. P. C. c. 25, s. 4. As to mis. Just. tit. Misdemeanor.

behaviour by public officers, see post, Book (1) I Hawk. c. 20, s. 2, and c. 50, s. II., Chap. xiv.

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jurious to public morals, is a misdemeanor at common law. (9) Also it seems to be a good general ground, that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable not only at the suit of the party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it. (r) But no injuries of a private nature are indictable, unless they in some way concern the king. (s)

It is an indictable offence, in the nature of a misdemeanor, to refuse or neglect to provide sufficient food or other necessaries for any infant of tender years, unable to provide for and take care of itself (whether such infánt be child, apprentice, or servant), whom the party is obliged by duty or contract to provide for; so as thereby to injure its health. (t) But it is not an indictable offence for a brother to neglect to maintain another brother, even if he be an idiot, helpless, and an inmate of his house. (u)

So long as an act rests in bare intention, it is not punishable : but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. (v) Thus, an attempt to commit a felony is, in many cases, a misdemeanor: (w) and an attempt to com

(9) 4 Blac. Com. 65 (n), 13th edit. 1 Rex v. Squire and wife, post, Book III. Hawk. P. C. c. 5, s. 4. I East, P. C. c. 1, Chap. i., of Murder. As to the neglect of s. 1, and see Rex v. Sir Charles Sedley, Sid. paupers by overseers of the poor, see post, 168. 1 Keb. 620, and Rex v. Crunden, 2 Book II. Chap. xiv. Offences by persons Campb. 89. Cases of men indecently ex

in Office. posing their naked persons.

(u) Rex v. Smith, 2 C. & P. 449, (r) 2 Hawk. P. C. c. 25, s. 4, and see 1 Burrough, J. See Reg. 1. Marriott

, 8 Hawk. P. C. c. 22, s. 5, where it is laid C. & P. 425. Patteson, J., post, Murder. down that every contempt of a statute is A case of murder by confining an aged indictable. But it is questionable, where female, and not providing her with sufficient the party offending has been fined, if he may afterwards be indicted : and where a (v) Per Lord Mansfield, C. J., in Schostatute extends only to private persons, or field's case, Cald. 397. The ancient writers, chiefly relates to disputes of a private in treating of felonious homicide, considered nature, it is said that offences against it will the felonious intention in the same light in hardly bear an indictment. 2 Hawk. P. C. point of guilt as homicide itself. Voluntas c. 25, 8. 4.

reputabatur pro facto, a rule which has long (8) 2 Hawk. P. C. c. 25, s. 4. Rex v. been laid aside as too rigorous in the case Richards, 8 T. R. 637. This distinction is of common persons, though retained in the stated also to have been taken in Rex v. statute of I'reasons, 25 Ed. 3, st. 5, c. 2. Bembridge & Powell (cited in Rex v. But when the rule prevailed, it was neces. Southerton, 6 East, 136), who were in. sary that the intention should be manifested dicted for enabling persons

by plain facts, not by bare words of any counts with the Pay-office in such a way as



their ac


kind. Hæc voluntas non intellecta fuit de to enable them to defraud the Government. voluntate nudis verbis aut scriptis propalata, It was objected, that this was only a private sed mundo manifestata fuit per apertum matter of account, and not indictable: but factum. 3 Inst. 5. Fost. 193. the Court held otherwise, as it related to (2) Higgins's case, 2 East. R. 21. Res the public revenue.

v. Kinnersley & Moore, 1 Str. 196. But in (0) Rex v. Friend and his wife, February I Hawk. P. C. c. 25, s. 3, is the following 1802, MS. Bayley, J., and Russ. & Ry. 20. passage :- · The bare intention to commit Chambre, J., differed, thinking it not an a felony is so very criminal, that at the indictable offence, but a matter founded common law it was punishable as felony wholly on contract, in this which was the “where it missed its effect through some case of an apprentice. The indictment "accident, no way lessening the guilt of the should state that the infant was of tender “offender. But it seems agreed at this day, years, and not able to provide for itself. “that felony shall not be imputed to a bare And see Rex v. Ridley, 2 Campb. 650. “intention to commit it; yet it is certain




is a misdemea

mit even a misdemeanor has been decided in many cases to be itself An attempt to a misdemeanor. (x) And the mere soliciting another to commit a commit felony felony is a sufficient act or attempt to constitute the misdemeanor.

nor; an Thus, to solicit a servant to steal his master's goods is a misdemeanor, attempt to though it be not charged in the indictment that the servant stole the commit a mis

demeanor is a goods, nor that any other act was done except the soliciting and in- misdemeanor, citing. (y) It was held not to be necessary, in order to shew that whether the this was only a misdemeanor, to negative the commission of the fe- offence be so

by common law lony; as none of the precedents of indictments for attempts to com- or by statute. mit rape or robbery contain any such negative averment: but it is left to the defendant to shew, if he please, that the misdemeanor was merged in the greater offence. And it has been held, that the completion of an act, criminal in itself, is not necessary to constitute criminality. (2) An attempt to commit a statutable misdemeanor, is as much indictable as an attempt to commit a common law misdemeanor, (a) for when an offence is made a misdemeanor by statute, it is made so for all purposes. (b) And the general rule is

, that " an * attempt to commit a misdemeanor is a misdemeanor, whether the " offence is created by statute, or was an offence at common law.” (c)

Upon the same principles some earlier cases appear to have proceeded. Thus, it was held indictable to attempt to bribe a cabinet minister and a member of the privy council to give the defendant an office in the colonies. (d) And an information was granted against a man for promising money to a member of a corporation, to induce him to vote for the election of a mayor: (e) an information also appears to have been exhibited against a person for attempting by bribery to influence a juryman in giving his verdict. (5) And it is laid down generally, that if a party offers a bribe to a judge, meaning to corrupt him in the cause depending before him, and the judge takes it not, yet this is an offence punishable by law in the party that offers it. (9) And an attempt to suborn a person to commit perjury, upon a reference to the judges, was unanimously holden by them to be a misdemeanor. (h)

In a case where the defendant was indicted for a misdemeanor


" that the party may be very severely fined "for such an intention.” Probably the latter part of this passage was intended to relate to a intention manifested by some act. And see I Hawk. P. C. c. 55.

(1) Per Grose, J., in Higgins's case, ? East

. R. 8, and see Rex v. Phillips, 6 East, 464, where an endeavour to provoke another to commit the misdemeanor of send

a challenge to fight, was held to be an mdictable misdemeanor. And by Lawrence, de in Higgins's case, “all such acts or attempts as tend to the prejudice of the community are indictable."

b) Higgins's case, 2 East, R. 6, in which see many cases cited, where attempts to commit felonies and misdemeanors have been considered as misdemeanors. (3) By Lord Mansfield in Rex o. Schofield,

(2) Rex c. Butler, 6 C. & P. 368. Patteson, J. Rex o. Roderick, 7 C. & P. 795, Pake B., Le Blane, J., in Rex v. Cartwright, Ex#. T. 180fi, Russ. & Ry. 107: but it SET: the judges did not go into the point,

as they decided that the paper by the production of which the defendant had attempted to obtain money at a bankers, and which was stated to be an order, was really no order. MS. Bayley, J.

(6) Parke, B., Rex v. Roderick, supra. (c) Per Parke, B., ibid.

(d) Vaughan's case, 4 Burr. 2494, and see Rex v. Pollman and others, 2 Campb. 229, where a conspiracy to obtain money, by procuring from the Lords of the Treasury the appointment of a person to an office in the Customs, was held to be a misdemeanor at common law.

(e) Plympton's case, 2 Lord Raym. 1377.

(Í) Young's case cited in Higgins's case, 2 East. R. 14 & 16.

(9) 3 Inst. 147; and see Rex v. Cassano, 5 Esp. 231, an information for attempting to bribe an officer of the Customs.

(h) Anon. before Adams, B., at Shrewsbury, cited in Schofield's case, Cald. 400, and in Higgins's case, 2 East, R. 14, 17, 22. This case is probably the same as Rex v. Edwards, MS. Sum. tit. Perjury.

Cabi. 400.

act, are suffi cient,


An act done, in having coining instruments in his custody, with intention to coin intention and a criminal half guineas, shillings, and sixpences, and to utter them as and for joined to that the legal current coin, Lord Hardwicke doubted what the offence

was; and the defendant being convicted, the indictment was removed into the King's Bench by certiorari for the opinion of that Court. Upon argument, and several cases cited, the Court held the offence to be a misdemeanor, and the conviction right; Lee, C. J., saying, that “all that was necessary in such a case, was an act

charged, and a criminal intention joined to that act.” (i) But though this doctrine of the learned judge be admitted to be correct, it does not appear to have been applicable to the facts of the case as charged, which did not amount to a criminal act by the defendant. And it is understood that this case was considered and thought untenable in a late case, in which it was holden that having counterfeit silver in possession with intent to utter it as good is no offence, there being no criminal act done. The prisoner had been found guilty of unlawfully having in possession counterfeit silver coin with intent to utter it as good : but, on a case reserved, the judges were of opinion that there must be some act done to constitute a crime, and that the having in possession only was not an act. (j). But the having a large quantity of counterfeit coin in possession, under suspicious circumstances and unaccounted for, appears to have been considered as evidence of having procured it with intent to utter it

as good, which is clearly a criminal act punishable as a misdemeanor. Procuring base Thus upon an indictment for procuring counterfeit shillings with coin with intent intent to utter them as good, the evidence was that two parcels were

found upon the prisoner containing about twenty shillings each, wrapped up in soft paper to prevent their rubbing, and there was nothing to induce a suspicion that the prisoner had coined them; and on a case reserved, the judges were of opinion unanimously

, that procuring with intent to utter was an offence, and that the having in possession unaccounted for, and without any circumstances to induce a belief that the prisoner was the maker, was evidence of procuring. (k) But the effect of such evidence would be removed by circumstances sufficient to induce a suspicion that the prisoner was the maker of the coin found in his possession: and, upon the argument in the last case, Thomson, C. B., mentioned a case where he had directed an acquittal, because, from certain powder found upon the prisoner, there was a presumption that he was the maker of the coin. (1) Upon an indictment for procuring

(i) Sutton's case, Rep. temp. Hardw. (1) Rex o. Stewart, Mich. T. 1814.
370; 2 Str. 1074. In this case there were Russ. & Ry. 288. S. P. Rex r. Heath,
cited, in support of the prosecution, a case East. T. 1810. Russ. & Ry, 184. See 2
of a conviction of three persons for having W. 4, c. 34, s. 8, as to this offence.
in their custody divers picklock keys with (k) Rex v. Fuller & Robinson, East. T.
intent to break houses, and steal goods ; Rex 1816. MS. Bayley J. Russ. & Ry. 308.
v. Lee & others, Old Bailey, 1689; and a In the marginal 'note to Parker's case,
case of an indictment for making coining 1 Leach, 41, it is stated, that having the
instruments, and having them in possession possession of counterfeit money with inten-
with intent to make counterfeit money, tion to pay it away as and for good money,
Brandon's case, Old Bailey, 1698; and also is an indictable offence at common law.
a case where the party was indicted for This may be criminal in some cases of such
buying counterfeit shillings with an intent possession as we have seen above: but qu.
to utter them in payment, Cox's case, Old if the point, as stated in the marginal note,
Bailey, 1690. See post, 2 W.4, c. 34, ss. 10 was actually decided in Parker's case.
&11, as to the unlawful possession of coining (1) Fuller & Robinson's case, ante, note


counterfeit money with intent to utter it, the uttering the money, knowing it to be counterfeit, is evidence that it was procured with that intent. (m)

With respect to persons having implements for housebreaking, &c., Persons having in their possession with a felonious intent, the Legislature has made implements of

house-breaking some provisions. The 5 Geo. 4, c. 83, s.4, enacts, " That every person with felonious “ having in his or her custody or possession any picklock key, crow, intent. “ jack, bit, or other implement, with intent feloniously to break into And reputed

any dwelling-house, warehouse, coach-house, stable, or out-build- thieves, &c. ing, or being armed with any gun, pistol, hanger, cutlass, bludgeon, " or other offensive weapon, or having upon him or her any instru

ment with intent to commit any felonious act; and every person “ being found in or upon any dwelling-house, warehouse, coach“house, stable, or out-house, or in any enclosed yard, garden, or “ area for any unlawful purpose, and every suspected person or re“puted thief frequenting places of public resort and other places “ specified in the act, with intent to commit felony shall be deemed "a rogue and vagabond within the intent and meaning of that “ statute.” And in some instances an act, accompanied with a cer- Other acts tain intent, has been made a felony by particular statutes ; as by the criminal from 7 & 8 Geo. 4, c. 29, s. 37, the severing with intent to steal the ore of any metal, or any coal, &c., from any mine, bed or vein thereof is made felony punishable as simple larceny. And by the 7 & 8 Geo. 4, c. 30, s. 3, the damaging certain articles in a course of manufacture, with intent to destroy them, and the entering certain places with intent to commit such offence, is made felony punishable by transportation for life or imprisonment, &c.

Where an offence is not so at common law, but made an offence Offences by act of Parliament, an indictment will lie where there is a sub- created by stantive prohibitory clause in such statute, though there be after- statute, when wards, a particular provision and a particular remedy given. (n) And it is stated as an established principle that when a new offence is created by an act of parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty; but he may proceed on the prior clause, on the ground of its being a misdemeanor. (0) And wherever a statute forbids the doing of a thing, the doing it wilfully, although without any corrupt motive, is indictable. (P) If a statute enjoin an act to be done, without pointing out any mode of punishment, an indict.



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(m) Brown's case, 1 Lew. 42, Holroyd, J., It is said the learned judge seemed to consider a procurement elsewhere, with intent to utter, a continuing procurement in the county where the uttering took place.

(a) Rex e. Wright, 1 Burr. 543. Rex Gregory, 5 B. & Ad. 555. 2 N. & M. 478. Reg. c. Wickham, 10 A. & E. 132.

1o) By Ashurst, J., in Rex v. Harris, 4 T. R. 205. And this principle has been held to apply, where the clause annexing the penalty was in the same section of the statute. Thus the repealed clause, 5th Eliz c. 4, s. 31, enacted, “ that it shall not " be lawful to any person to set up, &c. any " erafı

, mystery, &c. except be shall have " been brought up therein seven years as an " apprentice, &c.” upon pain that every VOL. I.


person willingly oftending or doing the
contrary forfeit for every default forty shil-
lings for every month ; and the method of
proceeding upon this statute was either by
information qui tam in the court of oyer and
terminer or sessions of the county, &c.,
where the offence was committed, to recover
the penalty, or by indictment in those courts.
See the cases collected in the note to Rex
o. Kilderby, 1 Saund. 312 a. But it should
be observed that a subsequent section (39)
gave authority to proceed by indictment, or
by information, &c.

(p) Rex v. Sainsbury, 4 T. R. 457,
where it was held to be a misdemeanor in
magistrates to grant an ale license where
they had no jurisdiction. See post, Book II.
Chap. xiv.

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