Imágenes de páginas
PDF
EPUB

What is a sufficient overt act to constitute an attempt to commit a crime, 62 what acts or omissions will constitute a person an accessary or an accomplice, 63 and the criminal liability of a person for the acts of his agent or servant,64 will be considered in subsequent chapters.

[ocr errors]

§ 6. Act intended as, but not constituting, a crime. Since the law does not punish a mere criminal intent unaccompanied by a criminal act,65 a person who intends a particular crime, and thinks he is committing it, is not for that reason guilty, if his acts do not in fact amount to a crime.66

§ 7. Treason, felonies and misdemeanors-In general. Crimes are generally classified according to the grade of the offense as treason, felonies and misdemeanors.67 Under most of the modern statutes, however, the division is into felonies and misdemeanors only.68 And in at least one state the distinction between felonies and misdemeanors is not observed by the code, but all statutory crimes are misdemeanors or high misdemeanors according to the degree of punishment imposed.69 Where the statutory division is into felonies and

[blocks in formation]

belief

cannot

64 See § 265, infra. 65 See § 5, supra. 66 A particular make that a crime which is not so in the absence of such belief." People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, 9 L. R. A. (N. S.) 263, 7 Ann. Cas. 348, rev'g 112 N. Y. App. Div. 516, 98 N. Y. Supp. 486.

So where, during the Revolutionary War, an American, mistaking a corps of American troops for British, went over to them, it was held that the fact that he thought they were British did not make him guilty of treason. Respublica v. Malin, 1 Dall. (U. S.) 33, 1 L. Ed. 25.

The same principle applies where a person obtains another's goods or money by making representations which he supposes to be false, but which happen to be true (see § 1226. infra), or where a person attempts to obtain another's property by false

pretenses, but, for some reason, no injury results (see § 1271, infra).

Nor can a person be convicted of feloniously receiving goods, knowing that they had been stolen, when the goods received had not in fact been stolen, although he believed that they had been. See § 928, infra.

And a person licensed to sell liquor for certain purposes only is guilty of no crime in making a sale to one who buys for an authorized purpose, although he believes that the purchase is made for an unauthorized purpose, and hence intends to break the law. Com. v. Joslin, 158 Mass. 482, 33 N. E. 653, 21 L. R. A. 449.

671 Russell on Crimes 8; Fimara v. Garner, 86 Conn. 434, 85 Atl. 670; State v. Rowe, 8 Rich. (S. C.) 17.

68 See the statutes of the various states. And see $8 et seq., infra; Com. v. New York Cent. & H. River R. Co., 206 Mass. 417, 92 N E. 766, 19 Ann. Cas. 529.

69 McMichael v. Culliton,

-

N. J. L.

It

misdemeanors, an offense must be either the one or the other. cannot be both, or a felony when committed by one person and a misdemeanor when committed by another.70

Treason will be considered at length in a subsequent chapter of this work.71

§ 8. Felonies - At common law. At common law, felonies were those offenses which occasioned forfeiture of the lands and goods of the offender, and to which might be added death or other punishment, according to the degree of guilt.72 Generally the punishment was death, in addition to such forfeiture, subject, however, to the benefit of clergy.73 The common-law felonies were murder, manslaughter, rape, sodomy, robbery, larceny, arson, burglary, and, according to Hun 623, 2 N. Y. Cr. 484; People v. Enoch, 13 Wend. 159, 27 Am. Dec. 197.

104 Atl. 433;
N. J. L. 265, 79
Wilson, 79 N. J.
aff'd 80 N. J. L. 467, 78 Atl. 144;
Brown v. State, 62 N. J. L. 666, 42
Atl. 811; Jackson v. State, 49 N. J. L.
252, 9 Atl. 740.

State v. Spence, 81
Atl. 1029; State v.
L. 241, 75 Atl. 776,

70 State v. Waller, 43 Ark. 381; Borino v. Lounsbury, 86 Conn. 622, 86 Atl. 597.

71 See ch. 29, infra.

72 4 Bl. Com. 94, 95.

United States. Bannon v. United States, 156 U. S. 464, 39 L. Ed. 494, 15 Sup. Ct. 467; Considine v. United States, 112 Fed. 342; United States v. Wynn, 9 Fed. 886; United States v. Coppersmith, 4 Fed. 198.

Alaska. United States v. Kono, 4 Alaska, 613.

Georgia. Adams v. Barrett, 5 Ga.

404.

Illinois. People v. Russell, 245 Ill. 268, 91 N. E. 1075.

New Jersey. Leeman V. Public Service R. Co., 77 N. J. L. 420, 72 Atl. 8.

New York. Fassett v. Smith, 23 N. Y. 252; Burton v. New York Cent. & H. River R. Co., 147 App. Div. 557, 132 N. Y. Supp. 628, aff'd 210 N. Y. 567, 104 N. E. 1127; People v. Lyon, 1 N. Y. Cr. 400, aff'd 33

Oregon. Ex parte Biggs, 52 Ore. 433, 97 Pac. 713.

Pennsylvania. Com. v. Schall, 12 Pa. Co. Ct. 554.

Rhode Island. State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R. A. 550.

Vermont. State v. Clark, 83 Vt. 305, 75 Atl. 534, Ann. Cas. 1912A 261. Virginia. Barko v. Com. 2 Va. Cas.

122.

"The old distinction between felonies and misdemeanors at the common law is practically impossible of definition. What is denounced as an infamous crime is practically a felony in its consequence, though it may be called a misdemeanor in the statute.' Chambers v. Buroughs, 44 App. Cas. (D. C.) 168, certiorari denied, 239 U. S. 649, 60 L. Ed. 485, 36 Sup. Ct. 284. 73 State v. Breuer, 113 S. C. 177, 102 S. E. 15.

As to the benefit of clergy, see 4 Bl. Com. 365 et seq.; State v. Chambers, 22 W. Va. 779, 46 Am. Rep. 550.

74 See Leeman v. Public Service R. Co., 77 N. J. L. 420, 72 Atl. 8.

Each of these crimes will be considered at length in subsequent chapters of this work.

some authorities, there were included also mayhem 75 and bigamy.76 In many of the states of this country there are constitutional or statutory provisions classifying crimes as felonies or misdemeanors according to the penalty imposed.77 In the absence of such a provision, according to the weight of authority, those crimes, and only those crimes, are deemed felonies which were such at common law or are expressly or impliedly declared to be such by statute, whatever may be the penalty imposed.78 But there is authority to the effect that even in the absence of statute the term includes all crimes punishable by death, or imprisonment in the state prison, and only such crimes.79

On a prosecution in a territorial court for violation of a federal statute, whether the offense is a felony or a misdemeanor, is to be determined by the federal law rather than by that of the territory,80

§ 9. --Constitutional and statutory provisions in general. In the absence of constitutional restrictions the legislature may classify particular crimes as felonies or misdemeanors as it sees fit, and may change the classification at will.81

75 See § 825, infra. 76 See § 1125, infra. 77 See § 10, infra.

78 United States. Bannon v. United States, 156 U. S. 464, 39 L. Ed. 494, 15 Sup. Ct. 467.

Maryland. Bowser v. State, 136 Md. 342, 110 Atl. 854; Dutton v. State, 123 Md. 373, 91 Alt. 417, Ann. Cas. 1916 C 89; Black v. State, 2 Md. 376.

Massachusetts. Com. v. Newell, 7 Mass. 245; Com. v. Barlow, 4 Mass. 439.

New York. People v. Lyon, 1 N. Y. Cr. 400, aff'd 33 Hun 623, 2 N. Y. Cr. 484.

[blocks in formation]

Before the passage of the federal statute defining felonies and misdemeanors it was held that those offenses against the federal laws were felonies which were declared by statute, expressly or impliedly, to be such; those offenses which were not defined by congress but were simply punished by their common-law names, and were felonies at common law; and those as to which congress adopted a state law under which they were felonies. Morris V. United States, 161 Fed. 672, on rehearing 168 Fed. 682, certiorari denied 214 U. S. 527, 53 L. Ed. 1068, 29 Sup. Ct. 704 (mem. dec.); Considine V. United States, 112 Fed. 342; In re Acker, 66 Fed. 290; United States v. Belvin, 46 Fed. 381; United States v. Coppersmith, 4 Fed. 198.

79 State v. Felch, 58 N. H. 1.

80 United States v. Vigil, 7 N. M. 296, 34 Pac. 530.

81 Gallot v. United States, 87 Fed.

A felony may be created by implication. Thus, if a statute creating an offense provides for the punishment of accessaries as such, the offense must be deemed a felony,82 for, as we shall see, it is only in the case of felonies that there can be accessaries.88 But an offense cannot be considered as impliedly made a felony by statute, unless such an intention on the part of the legislature is clear, and the implication is a necessary one.84 If the statute is doubtful or ambiguous, the

446; State v. Holder, 153 N. C. 606, 69 S. E. 66; State v. Shine, 149 N. C. 480, 62 S. E. 1080; State v. Jones, 145 N. C. 460, 59 S. E. 117; State v. Lytle, 138 N. C. 738, 51 S. E. 66; State v. Hill, 91 N. C. 561; Com. v. Hutchison, 6 Pa. Super. Ct. 405; State v. Breuer, 113 S. C. 177, 102 S. E. 15. Where not defined by statute, the term has no very definite or precise meaning, but merely implies a crime of a graver nature than a misdemeanor. State v. Eubanks, 114 La. 428, 38 So. 407.

In the absence of any provision on the subject in the constitution, the legislature is not obliged to fix the punishment in the penitentiary in order to create a felony. It may declare an act a felony and provide for its punishment with or without hard labor. State v. Harwick, 133 La. 545, 63 So. 166.

The legislature may carve misdemeanors of different grades out of acts declared to be felonies by an existing law. State v. Wall, 126 La. 400, 52 So. 556.

It may reduce the punishment for any offense so as to make it a misdemeanor or a petty misdemeanor. State v. Hyman, 164 N. C. 411, 79 S. E. 284; State v. Dunlap, 159 N. C. 491, 74 S. E. 626.

It may make particular offenses petty misdemeanors in a particular locality only. State v. Lytle, 138 N. C. 738, 51 S. E. 66.

Where a statute expressly declares an offense to be a felony, and fixes the

punishment at death, the mere substitution of a less punishment does not make the offense a misdemeanor. State v. Rowe, 8 Rich. (S. C.) 17.

82 Com. v. Barlow, 4 Mass. 439; Com. v. Macomber, 3 Mass. 254. 83 See § 219, infra.

84 State v. Hill, 91 N. C. 561.

If an offense was not a felony at common law, it will not be regarded as one under the statute unless the intendment to make it such is clear. State v. Warady, 78 N. J. L. 687, 75 Atl. 977, aff'g 77 N. J. L. 348, 72 Atl. 37.

Thus, where a statute declared that one convicted of a certain offense which was not a felony at common law (assault with intent to murder) should be deemed a "felonious" assaulter, and the same term was used in another statute, by which it was clear that the legislature did not intend to create a felony, it was held that the term might be applied to the disposition of the mind of the assaulter, and not as descriptive of the offense, and that the statute, therefore, did not make the offense a felony. Com. v. Barlow, 4 Mass. 439. And see Com. v. Newell, 7 Mass. 245; Com. v. Macomber, 3 Mass. 254.

The fact that the statute provides for imprisonment "at hard labor" does not make the offense a felony.

United States v. Kono, 4 Alaska 613; United States v. Doo-Noch-Keen, 2 Alaska 624. See also Considine v. United States, 112 Fed. 342.

offense will be construed to be a misdemeanor and not a felony.8 85 And it does not necessarily follow that because the punishment affixed to an offense is infamous, the offense itself is thereby raised to the grade of felony.86

§ 10. --Punishment or possible punishment. In most jurisdictions there are constitutional or statutory provisions to the effect that all offenses which are or may be punished by death or confinement in the state prison are felonies, and that all other offenses are misdemeanors.87 As a rule, such provisions are held to apply only to those

85 United States v. Kono, 4 Alaska 613; United States v. Doo-Noch-Keen, 2 Alaska 624.

86 Bannon v. United States, 156 U. S. 464, 39 L. Ed. 494, 15 Sup. Ct. 467; Hume v. United States, 118 Fed. 689; United States v. Kono, 4 Alaska 613; Jones v. Brinkley, 174 N. C. 23, 93 S. E. 372.

"What is denounced as an infamous crime is practically a felony in its consequence, though it may be called a misdemeanor in the statute." Chambers v. Buroughs, 44 App. Cas. (D. C.) 168, certiorari denied, 239 U. S. 649, 60 L. Ed. 485, 36 Sup. Ct. 284. 87 See the statutes of the various states and U. S. Pen. Code 1910, § 335; United States v. Gaag, 237 Fed. 728; Sheridan v. United States, 236 Fed. 305; Hoss v. United States, 232 Fed. 328; Wood v. United States, 204 Fed. 55.

This provision does not operate to repeal a provision for a punishment greater than imprisonment for one year in an earlier statute which classifies the offense therein denounced as a misdemeanor, but merely operates to define as a felony the offense therein described. Sheridan v. United States, 236 Fed. 305.

Alabama. Clifton v. State, 73 Ala. 473; Cook v. State, 60 Ala. 39, 31 Am. Rep. 31; Turner v. State, 40 Ala. 21. Alaska. United States v. Kono, 4 Alaska 613.

Arizona. Gherna v. State, 16 Ariz. 344, 146 Pac. 494, Ann. Cas. 1916 D 94.

Arkansas. State v. Waller, 43 Ark.

[blocks in formation]

Florida. Douglas v. Smith, 66 Fla. 460, 63 So. 844; Walden v. State, 50 Fla. 151, 39 So. 151.

Georgia. Pearson v. Wimbish, 124 Ga. 701, 52 S. E. 751, 4 Ann. Cas. 501; Gray v. State, 6 Ga. App. 428, 65 S. E. 191; Freeman v. State, 1 Ga. App. 276, 57 S. E. 924.

Illinois. People v. Russell, 245 Ill. 268, 91 N. E. 1075; People v. George, 186 Ill. 122, 57 N. E. 804; Brewster v. People, 183 Ill. 143, 55 N. E. 640; Baits v. People, 123 Ill. 428, 16 N. E. 483; Lamkin v. People, 94 Ill. 501. Indiana. State v. Smith, 8 Blackf.

489.

Iowa. The statute further provides that where the performance of any act is prohibited by statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor. Bopp v. Clark, 165 Iowa 697, 147 N. W. 172, 52 L. R.

« AnteriorContinuar »