in its operation 34 in most of the states in this country, and in some of the states it has been abolished by statute.35 So, it is sometimes provided by statute that a person accused of crime may be convicted of any lesser offense necessarily included in that charged,36 or that one indicted for a felony may be acquitted of a part of the offense charged and convicted of the residue,87 or that the accused may be 76 Ga. 808; Sharp v. State, 7 Ga. App. 605, 67 S. E. 699; State v. Vadnais, 21 Minn. 382; Hunter v. Com., 79 Pa. St. 503, 21 Am. Rep. 83. It was never in force in Ohio. Mitchell v. State, 42 Ohio St. 383. In the following cases it was held that a conspiracy to commit an offense is not merged in the completed offense, though the latter is a felony. United States v. Rabinowich, 238 U. S. 78, 59 L. Ed. 1211, 35 Sup. Ct. 682; Heike v. United States, 227 U. S. 131, 57 L. Ed. 450, 33 Sup. Ct. 226, aff'g 192 Fed. 83; United States v. Ram Chandra, 254 Fed. 635; McKnight v. United States, 252 Fed. 687, certiorari denied 249 U. S. 614, 63 L. Ed. 802, 39 Sup. Ct. 388; United States v. Rogers, 226 Fed. 512; Stanley v. United States, 195 Fed. 896; McConkey v. United States, 171 Fed. 829; United States v. Rindskopf, 6 Biss. (U. S.) 259, Fed. Cas. No. 16,165. (It is to be noted, however, that conspiracies to commit offenses against the United States, or to defraud the United States, which are made criminal by § 37 of the Federal Penal Code, are felonies under Id., § 335, since the conspirators may be punished by imprisonment for more than one year.) State v. Gannon, 75 Conn. 206, 52 Atl. 727; State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121; State v. Effler, 2 Boyce (Del.) 92, 78 Atl. 411; State v. Grant, 86 Iowa 216, 53 N. W. 120. And see Williams v. State, 188 Ind. 283, 123 N. E. 209; Wait v. Com., 113 Ky. 821, 69 S. W. 697, and § 491, infra. 34 By the greater weight of authority the common-law rule has been to a great extent abrogated, and confined to very narrow limits. People v. Robertson, 284 Ill. 620, 120 N. E. 539, aff'g 210 Ill. App. 234; Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168. See also People v. Rathbun, 44 N. Y. Misc. 88, 89 N. Y. Supp. 746. 35 See the statutes of the various states. A conspiracy to commit a felony was not merged in the completed felony under Cal. Code, § 182, relating to conspiracies, prior to its amendment. People v. MacPhee, 26 Cal. App. 218, 146 Pac. 522. This provision was amended in 1919 so as to make the conspiracy punishable in the same manner as the completed offense. 36 Alabama. Ala. 33. Arkansas. Pratt v. State, 51 Ark. 167, 10 S. W. 233. Bryant v. State, 76 Iowa. State v. Kyne, 86 Iowa 616, 53 N. W. 420. Michigan. See People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. Rep. 360. Minnesota. Minn. 382. Tennessee. 685. State v. Vadnais, 21 Hall v. State, 7 Lea 37 Com. v. Stuart, 207 Mass. 563, 93 N. E. 825; Com. v. Andrews, 132 Mass. 263; Com. v. Dean, 109 Mass. 349; Com. v. Walker, 108 Mass. 309. And see State v. Mueller, 85 Wis. 203, 55 N. W. 165. convicted of the offense charged in the indictment although the proof shows him to be guilty of a higher degree of that offense,38 or that if, upon the trial of any person for a misdemeanor, the facts given in evidence amount in law to a felony, he shall not, by reason thereof, be entitled to an acquittal of the misdemeanor.39 38 Wait v. Com., 113 Ky. 821, 69 S. W. 697 (conspiracy to commit a felony and the completed felony); Com. v. Bright, 78 Ky. 238 (breach of the peace and maliciously assaulting and wounding with a dangerous weapon). 39 People v. Summers, 115 Mich. 537, 73 N. W. 818. People v. Petheram, 64 Mich. 252, 31 N. W. 188; People v. Arnold, 46 Mich. 268, 9 N. W. 406. CHAPTER 2 SOURCES OF THE CRIMINAL LAW § 17. In general. § 18. Estoppel. I. NECESSITY FOR PROHIBITION BY LAW II. THE COMMON LAW § 19. Definition, nature and sources. § 20. Recognition and adoption in the United States. § 21. Offenses against the federal government and in territory subject to its jurisdiction. § 22. Abolition of the common law. § 23. Acts and omissions prohibited and punished. III. THE STATUTE LAW A. Power of Congress and Legislatures § 24. Power of Congress-In general. § 25. § 26. § 27. - Offenses by or against Indians or on Indian reservations. Offenses on the high seas. Offenses in the territories. § 29. Power of state legislatures. § 30. Power of territorial legislatures. § 31. In general. B. Delegation of Legislative Power § 32. To the judiciary. § 33. To private corporations. § 34. Delegation of power to make rules and regulations or to grant permits. § 35. Laws operative on future contingency. C. Constitutional Limitations § 36. In general. § 37. Partial invalidity. § 38. Form of statutes and requirements as to enactment. § 39. Local and special laws. § 40. Uniform operation of general laws. § 41. Privileges and immunities. § 42. Equal protection of the laws. § 43. Due process of law. § 44. Right to make contracts. § 45. Right to follow lawful business or occupation. § 46. The police power-In general. § 52. § 53. $ 54. $ 55. Laws creating or aggravating offenses. -Laws regulating mode of procedure-In general. § 56. — Changing rules of evidence. § 65. Ordinary meaning of language. § 66. Strict construction. § 67. Reason and purpose of statute. § 68. Preamble and title of act. § 69. Construction with reference to the common law. § 70. Prior judicial construction. § 71. Construction as a whole. § 72. Construction of statutes together. § 73. Construction in connection with the constitution. I. NECESSITY FOR PROHIBITION BY LAW § 17. In general. To be a crime, an act must be prohibited and made punishable by law,1 both at the time when it is committed and at the time when it is punished. It must have possessed, at the time when its commission was complete, every element necessary to its criminality, and, if not an offense at that time, it cannot become such 1 United States. Salas v. United States, 234 Fed. 842, rev'g United States v. Burke, 221 Fed. 1014; Anon. ymous, 1 Wash. C. C. 84, Fed. Cas. No. 475. Alabama. State v. Johns, 142 Ala. 61, 38 So. 755. Arizona. La Porte v. State, 14 Ariz. 530, 132 Pac. 563. District of Columbia. Curry v. District of Columbia, 14 App. Cas. 423. Georgia. Patton v. State, 80 Ga. 714, 6 S. E. 273; Draper v. State, 6 Ga. App. 12, 64 S. E. 117; Glover v. State, 4 Ga. App. 455, 61 S. E. 862. Indiana. Rust v. State, 4 Ind. 528. Kentucky. Com. v. Hoke & Yocum, 14 Bush. (Ky.) 668. Massachusetts. Com. v. Grover, 16 Gray 602; Com. v. Marshall, 11 Pick. 350, 22 Am. Dec. 377. Michigan. Ware v. Branch Circuit Judge, 75 Mich. 488, 42 N. W. 997. Missouri. State of Missouri V. Schlottman, 52 Mo. 164. Nevada. Ex parte Rickey, 31 Nev. 82, 100 Pac. 134, 135 Am. St. Rep. 651. Ohio. Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355. Tennessee. Wharton v. State, 5 Coldw. 1, 94 Am. Dec. 214; State v. Davidson, 2 Coldw. 184. Texas. Greer v. State, 22 Tex. 588; Sheppard v. State, 1 Tex. App. 522, 28 Am. Rep. 422. "Acts which the law declares to be criminal are the only ones which constitute crime, or for which a criminal court has jurisdiction to try an accused person. "" Eureka Bank Habeas Corpus Cases, 35 Nev. 80, 126 Pac. 655, 129 Pac. 308. 2 State v. Daley, 29 Conn. 272; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377; State v. Gumber, 37 Wis. 298. An act cannot be punished under a statute enacted after it was committed. Shields v. State, 78 Fla. 524, 83 So. 391. Where a statute is repealed without a saving clause after a crime is committed and a new one enacted in its place, the person committing it cannot be prosecuted under either statute. State v. District Court of Fifth Judicial Dist., 54 Mont. 332, 169 Pac. 1180. An act committec while a law is in force prohibiting and punishing it cannot be made the subject of a criminal prosecution after the law has been repealed without a saving clause as to acts previously committed. See § 80, infra. 8 United States v. Dietrich, 126 Fed. 676. The essential elements of a crime are to be determined by the law in force when the alleged offense was committed rather than by that in force at the time of the trial. Gray v. State, 72 Fla. 487, 73 So. 583; People v. Glabman, 197 Ill. App. 508. In homicide cases, death must be held to relate back to the blow or other act which occasioned it, and the law then in force applies rather than a statute enacted between the date |