A capital offense or felony is one which may be punishable by death. And an offense is capital if the penalty of death may be inflicted under any circumstances, whether it is actually inflicted in the particular case or not.10 "A quasi crime is an offense not constituting a crime or misdemeanor at law, but which is in the nature of a crime."'11 § 2. Distinction between public and private wrongs. Crimes are to be distinguished from private wrongs, commonly known as torts or civil injuries. Blackstone states the distinction to be "that private wrongs or civil injuries are an infringement or privation of civil rights which belong to individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of public rights and duties due to the whole community, considered as a community, in its social aggregate capacity." 12 For example, at common law, the mere going 10 Ex parte McCrary, 22 Ala. 65; Ex parte Dusenberry, 97 Mo. 504, 11 S. W. 217. An offense punishable by death or imprisonment, as the jury shall recommend, is a capital one, and a conviction of such an offense is a conviction of a capital offense although the jury recommends imprisonment. Caesar v. State, 127 Ga. 710, 57 S. E. 66. Where the statute provides that no person under the age of 17 shall be punished with death, a person under that age indicted for murder is not charged with a capital offense. Walker v. State, 28 Tex. App. 503, 13 S. W. 860. 11 Southern R. Co. v. McNeeley, 44 Ind. App. 126, 88 N. E. 710, 714, and see to the same effect Barron v. City of Anniston, 157 Ala. 399, 48 So. 58; Wiggins v. City of Chicago, 68 Ill. 372. "A quasi crime would not embrace an indictable offense, whatever might be its grade, but simply forfei tures for a wrong done to the public, whether voluntary or involuntary, where a penalty is given, whether recoverable by criminal or civil process; and it would embrace prosecutions for bastardy, and informations in the nature of quo warranto, etc." Wiggins v. City of Chicago, 68 Ill. 372. In Zito v. People, 140 Ill. App. 611, aff'd 237 Ill. 434, 86 N. E. 1041, an action to collect a penalty for the unlawful sale of cocaine was held to be quasi criminal, and, in substance, a quasi-criminal prosecution. Bastardy proceedings are quasi criminal, State v. Hughes, 8 S. D. 338, 66 N. W. 1076; State v. Bunker, 7 S. D. 639, 65 N. W. 33, and so are proceedings for the removal of a public officer for misconduct in office, State v. District Court, Silver Bow County, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913 B 396, and proceedings for the violation of municipal ordinances are often said to be quasi criminal. See § 4, infra. In California it has been held that no such intermediate grade between civil and criminal breaches of legal obligations is known to the law. In re Clark, 24 Cal. App. 389, 141 Pac. 831. 12 4 Bl. Com. 5. City of Montgomery v. Postal Tel. Cable Co., 218 upon another's land,13 or the obtaining of another's property by a mere lie,14 is not a public wrong or crime, but is a mere private wrong or tort. And the same is true of maintaining a nuisance which affects. a single individual only.15 On the other hand, it is public wrong, or crime, at common law, to go upon another's land under such circumstances as to constitute a breach of the public peace,1 16 or to maintain a nuisance on or near a public highway, so as to affect all who pass, or in a thickly-settled community, so as to affect the whole community,17 or to cheat another out of his property by using false weights or measures.18 The same act may be both a crime and a civil injury, however, 19 and for this reason the tendency of the act cannot be relied upon alone to determine in a particular case whether it is a crime, and whether the proceeding therefor is a criminal prosecution. The true test is whether the real end or object of the proceeding is punishment or reparation. If the former, the act is a crime and the proceeding criminal; if the latter, the injury and the proceeding are civil.20 The Fed. 471; State of Iowa v. Chicago, Blackstone says: "Wrongs are divisible into two sorts or species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanors." 3 Bl. Com. 2; Koch v. Vanderhoof, 49 N. J. L. 619, 9 Atl. 771. In Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 Sup. Ct. 224, it is said that "the test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual," according to the above classification. 13 See § 962, infra. 14 See § 1224, infra. 20 Stone v. United States, 167 U. S. 178, 42 L. Ed. 127, 17 Sup. Ct. 778; Gruetter v. Cumberland Telephone & Telegraph Co., 181 Fed. 248; State v. District Court, Silver Bow County, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913B 396; Jernigan v. Com., 104 Va. 850, 52 S. E. 361; Reg. v. Page, 3 Post & F. 29, note. As was said by Austin: "The difference between crimes and civil injuries is not to be sought in a supposed difference between their tendencies, but in the difference between the mode wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offense which is pursued at the discretion of the injured party, or his representative, is a civil injury. An offense which is pursued by the sovereign, or by a subordinate of the nature rather than the form of an action is controlling, therefore, in determining whether it is civil or criminal, and it may be civil in its nature though criminal in form, or vice versa.21 So quo warranto proceedings are universally regarded as civil in their nature, even though criminal in form.22 On the other hand an action by the state to recover a penalty imposed as a punishment for violation of laws is criminal in its nature, though civil in form.23 And the same has been sovereign, is a crime." Aust. Jur., § 17. Quoted in Cooley on Torts (2nd Ed.), p. 96; Jernigan v. Com., 104 Va. 850, 52 S. E. 361. "The question whether a statute of one state, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act.' Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 Sup. Ct. 224, rev'g 70 Md. 191, 16 Atl. 651, 2 L. R. A. 779, 14 Am. St. Rep. 344. Quoted in Gruetter V. Cumberland Telephone & Telegraph Co., 181 Fed. 248. In Jernigan v. Com., 104 Va. 850. 52 S. E. 361, a proceeding for a trespass by going upon and fishing in waters on lands owned by another, in violation of a statute, was held to be a criminal and not a civil one, although based upon the complaint of the tenant of the land, in view of the fact that the act was forbidden by a statute, which provided a fine for its violation; that the warrant under which the accused was arrested, tried and convicted was a proceeding by the state; that the penalty was imposed for her benefit; and that the justice was required to commit the accused to jail in case the fine was not paid. An action to recover a money pen alty brought by the party injured by the violation of a common-law obligation and a private wrong, and for his sole benefit, is a civil action. Gruetter v. Cumberland Telephone & Telegraph Co., 181 Fed. 248. A statutory action for the recovery of money paid for liquor sold in violation of law is civil. United Breweries Co. v. Colby, 170 Fed. 1008. For the distinction between penal and criminal laws, see Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 Sup. Ct. 224, rev'g 70 Md. 191, 16 Atl. 651, 2 L. R. A. 779, 14 Am. St. Rep. 344. 21 Wisconsin V. Pelican Ins. Co., 127 U. S. 265, 32 L. Ed. 239, 8 Sup. Ct. 1370; Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. 524; City of Montgomery v. Postal Tel.-Cable Co., 218 Fed. 471; State of Arkansas v. St. Louis & S. F. R. Co., 173 Fed. 572; State of Indiana v. Alleghany Oil Co., 85 Fed. 870; State of Texas v. Day Land & Cattle Co., 41 Fed. 228; State of Iowa v. Chicago, B. & Q. R. Co., 37 Fed. 497. 22 Ames v. State of Kansas, 111 U. S. 449, 28 L. Ed. 482, 4 Sup. Ct. 437, and cases there cited; State v. Illinois Cent. R. Co., 33 Fed. 721. 23 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 32 L. Ed. 239, 8 Sup. Ct. 1370; State of Indiana v. Alleghany Oil Co., 85 Fed. 870; State of Texas v. Day Land & Cattle Co., 41 Fed. 228; United States v. Mexican Nat. Ry. Co., 40 Fed. 769; Ferguson v. Ross, 38 Fed. 161. [§ 2 held to be true of proceedings to forfeit a person's property by reason of its use in violating a criminal statute; 24 of proceedings to remove a public officer for misconduct in office; 25 of a suit to enjoin the defendant from transacting business without paying a city license, which is made a criminal offense by an ordinance; 26 of a suit to restrain an alleged trust from carrying on business within a state in violation of a criminal statute; 27 and of a statutory action for damages for fraudulent marriage brought in the name of the state on relation of the abandoned wife.28 Bastardy proceedings may be either civil or criminal, depending upon the purpose of the statute under which they are brought. If its purpose is merely to charge the father with the child's maintenance, and to give redress to the mother or indemnify the county against liability for the support of the child as a pauper, and not to punish him as for an offense against society, the proceeding is civil, even though it is brought in the name of the state.29 But if the statute provides for the imposition of a fine upon a finding of the issue of paternity against the defendant, in addition to the allowance to be made for the use of the mother, and declares that he shall be imprisoned in default of payment, the begetting of a bastard child is thereby made a misdemeanor, and the proceeding is criminal.30 An action by the state against a railroad company to recover a statutory penalty for extortion was held to be criminal in its nature within the meaning of the statute governing the removal of causes to the federal courts, though denominated a civil action by the statute. State of Iowa v. Chicago, B. & Q. R. Co., 37 Fed. 497. 24 It is within the provision of the constitution that no person shall be compelled in any criminal case to be a witness against himself. Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. 524. See also Coffey v. United States, 116 U. S. 436, 29 L. Ed. 684, 6 Sup. Ct. 437. 25 Kilburn v. Law, 111 Cal. 237, 43 Pac. 615; In re Curtis, 108 Cal. 661, 41 Pac. 793. In State v. District Court Silver Bow County, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913 B 396, such a proceeding is said to be quasi criminal. 26 City of Montgomery v. Postal Tel.-Cable Co., 218 Fed. 471. 27 Moloney v. American Tobacco Co., 72 Fed. 801. 28 Latshaw v. State, 156 Ind. 194, 59 N. E. 471. 29 Iowa. State V. Johnson, 89 Iowa 1, 56 N. W. 404. Kentucky. Chandler v. Com., 4 Metc. 66. Maine. Hodge v. Sawyer, 85 Me. 285, 27 Atl. 153. North Carolina. State v. Burton, 113 N. C. 655, 18 S. E. 657; State v. Pate, 44 N. C. 244. Oklahoma. Libby v. State, 42 Okla. 603, 142 Pac. 406; Anderson v. State, 42 Okla. 151, 140 Pac. 1142. 30 State v. Ballard, 122 N. C. 1024, 29 S. E. 899; State v. Ostwalt, 118 N. C. 1208, 24 S. E. 660, 32 L. R. A. The same act may § 3. Same act may be both a tort and a crime. be both a tort and a crime, and may give rise to both a civil action and a criminal prosecution.31 This is true of all criminal offenses which cause injury to the person or property of individuals,82 such as assault and battery.33 In the same category are to be included 396; State v. Cagle, 114 N. C. 835, 19 S. E. 766; Myers v. Stafford, 114 N. C. 234, 689, 19 S. E. 764; State v. Burton, 113 N. C. 655, 18 S. E. 657. 31 United States. In re Debs, 158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900; United Breweries Co. v. Colby, 170 Fed. 1008. Alabama. Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 So. 375, 30 Am. St. Rep. 17. Florida. Smith v. Bagwell, 19 Fla. 117, 45 Am. Rep. 12. Indiana. Latshaw V. State, 156 Ind. 194, 59 N. E. 471. Michigan. Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668. Pennsylvania. Barr v. Moore, 87 Pa. St. 385, 30 Am. Rep. 367. Wisconsin. Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582. Wyoming. Cosgriff Bros. v. Miller, 10 Wyo. 190, 68 Pac. 206, 98 Am. St. Rep. 977. See also cases cited in the following notes. The fact that the cutting of telephone wires crossing a railroad by an employee of the railroad company grows out of a civil controversy between the railroad and telephone companies as to their respective rights, does not entitle such employee to an acquittal in a criminal prosecution for cutting the wires. Alt v. State, 88 Neb. 259, 129 N. W. 432, 35 L. R. A. (N. S.) 1212. The pendency or recovery of damages in a civil action for an act which is also a crime will not bar a criminal prosecution for the same offense. See § 180, infra. At common law the punishment for felonies was so great, being death and forfeiture of property, that it was not possible to make any reparation for the private wrong, and the damages resulting were therefore deemed merged in the punishment for the crime. 4 Bl. Com. 6. But this is no longer the law, and the fact that a person is liable criminally or has been prosecuted criminally for an act will not bar a civil action for damages for the same act. See civil cases cited in this and the following notes, and see also works on Torts. 32 In re Debs, 158 U. S. 564, 39 L. Ed. 1092, 15 Sup. Ct. 900. 33 United States. Brown v. Evans, 17 Fed. 912. California. Bundy v. Maginess, 76 Cal. 532, 18 Pac. 668; Wilson V. Middleton, 2 Cal. 54. Delaware. Hendle v. Geiler, 50 Atl. 632. District of Columbia. Huber v. Teuber, 3 MacArthur, 484, 36 Am. Rep. 110. Florida. Smith v. Bagwell, 19 Fla. 117, 45 Am. Rep. 12. Georgia. Berkner v. Dannenberg, 116 Ga. 954, 43 S. E. 463, 60 L. R. A. 559; Parker v. Lanier, 82 Ga. 216, 8 S. E. 57. Indiana. Taber v. Hutson, 5 Ind. 322, 61 Am. Dec. 96; Borkenstein v. Schrack, 31 Ind. App. 220, 67 N. E. 547. Iowa. Hauser v. Griffith, 102 Iowa 215, 71 N. W. 223; Root v. Sturdivant, 70 Iowa 55, 29 N. W. 802; Reddin v. Gates, 52 Iowa 210, 2 N. W. 1079. |