61 right. Again, the question has been much considered in cases involving the determination of whether the constitutional provisions against double jeopardy apply to prevent two prosecutions for the same act, the one in violation of a municipal ordinance prohibiting it, and the other under a If the offense against the ordinance is a criminal offense, it would follow logically that the same act may not be punished under both ordinance and statute; and there are decisions to that effect.62 The opposite conclusion, however, has more frequently been reached; the two offenses being declared to be distinct.63 state statute. 61 STATE v. WEST, supra; City of Mankato v. Arnold, 36 Minn. 62, 30 N. W. 305; McInerney v. City of Denver, 17 Colo. 302, 29 Pac. 516; Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; State v. Glenn, 54 Md. 573; State v. Conlin, 27 Vt. 318; Byers v. Com., 42 Pa. 89; McGear v. Woodruff, 33 N. J. Law, 213; People v. Justices of Court of Special Sessions, 74 N. Y. 406; Inwood v. State, 42 Ohio St. 186; Wong v. Astoria, 13 Or. 538, 11 Pac. 295. Hankins v. People, 106 Ill. 628. 62 State v. Thornton, 37 Mo. 360; 63 Ambrose v. State, 6 Ind. 351; v. Lee, 29 Minn. 445, 13 N. W. 913; 717, 13 South. 187, 40 Am. St. Rep. 249; State v. Clifford, 45 La. Ann. 980, 13 South. 281; State v. Stevens, 114 N. C. 873, 19 S. E. 861; McInerney v. City of Denver, 17 Colo. 302, 29 Pac. 516; Koch v. State, 53 Ohio St. 433, 41 N. E. 689; City of Yankton v. Douglass, 8 S. D. 441, 66 N. W. 923; Ex parte Hong Shen, 98 Cal. 681, 33 Pac. 799; State v. Gustin, 152 Mo. 108, 53 S. W. 421. 7. Crimes, at common law, are divided into (a) Treason. (b) Felonies, and (c) Misdemeanors. TREASON 8. In this country treason can consist only in levying war against the United States, or a particular state, or in adhering to their enemies, giving them aid and comfort. Under the old English common law, treason was divided into high and petit treason, the former consisting in certain acts against the sovereign, and the latter in the murder of a superior by an inferior; that is, of a husband by his wife, a master by his servant, or a lord or ordinary by an inferior ecclesiastic.1 There is no longer such a crime as petit treason, the offense being regarded simply as homicide. With us the crime of treason is expressly defined by the federal constitution, which declares that "treason against the United States shall consist only in levying war against 14 Bl. Comm. 75. them, or in adhering to their enemies, giving them aid and comfort"; 2 and there are similar provisions in the state constitutions. Treason is a specific crime, and will be so treated hereafter.3 FELONIES AND MISDEMEANORS 9. "Felony is any offense which by the statutes or by the common law is punishable with death, or to which the old English law attached the total forfeiture of lands or goods, or both, or which a statute expressly declares to be such." In some states, the statutes expressly declare all crimes to be felonies. which are punishable by death or by imprisonment in the state prison. 10. All crimes less than felonies are misdemeanors. 5 A felony at common law was any crime which occasioned the forfeiture of lands and goods. This was usually accompanied by capital punishment, though not always; but, as capital punishment was usually inflicted, felonies came to include all crimes punishable by death." Forfeiture of lands and goods as a punishment for crime is now abolished. Felony is now generally defined by statute, either in general terms or by a specific declaration accompanying the definition of the crime. In states where there is no general statutory definition of the term, and no accompanying declara 8 Post, p. 469. 2 Const. U. S. art. 3, § 3, cl. 1. 41 Bish. New Cr. Law, § 615; State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R. A. 550; Com. v. Schall, 12 Pa. Co. Ct. R. 554. Suicide was felony. Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109. So excusable homicide, being accompanied by forfeiture, was a felony. 64 Bl. Comm. 94. tion to determine whether the given crime is a felony or a misdemeanor the courts look to the history of the particular offense, and ascertain whether it was a felony at common law, and this although the punishment may be imprisonment, and not death." In many states statutes have been enacted declaring all offenses to be felonies which are punishable by death or by imprisonment in the state prison. Under these statutes, a crime is a felony if it may be punished by imprisonment in the state prison, though it may lie within the discretion of the court or jury to inflict a less punishment, and even though a less punishment is in fact imposed.10 Where a statute provides that one who violates its provisions shall be deemed to have "feloniously" committed the act, the offense is thereby made a felony; and so, also, if it provides for punishing accessaries, as there can be accessaries in felonies only.11 11 71 Bish. New Cr. Law, § 616; State v. Dewer, 65 N. C. 572. Cf. Com. v. Newell, 7 Mass. 245. In the absence of a statute defining "felony" the word is used to designate such serious offenses as were formerly punished by death, or by forfeiture of lands or goods. Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494. 8 Drennan v. People, 10 Mich. 169; State v. Smith, 8 Blackf. (Ind.) 489; Nichols v. State, 35 Wis. 308; Smith v. State, 33 Me. 48, 54 Am. Dec. 607. Under Code N. C. § 1097, providing that for misdemeanors done with deceit and intent to defraud the offender may be punished by imprisonment in the penitentiary, and a later act making all offenses so punishable felonies, a conspiracy to cheat and defraud, being committed with deceit and so punishable, is a felony. State v. Mallett, 125 N. C. 718, 34 S. E. 651. Ingram v. State, 7 Mo. 293; State v. Smith, 32 Me. 369, 54 Am. Dec. 578; People v. War, 20 Cal. 117; People v. Park, 41 N. Y. 21; People v. Lyon, 99 N. Y. 210, 1 N. E. 673; Randall v. Com., 24 Grat. (Va.) 644; State v. Harr, 38 W. Va. 58, 17 S. E. 794. Contra, Lamkin v. People, 94 Ill. 501. 10 People v. Hughes, 137 N. Y. 29, 32 N. E. 1105; Benton v. Com., 89 Va. 570, 16 S. E. 725; State v. Melton, 117 Mo. 618, 23 S. W. 889. 11 Com. v. Barlow, 4 Mass. 439; Com. v. Macomber, 3 Mass. 254. Importance of Distinction The distinction between felonies and misdemeanors is an important one, though you will see statements to the contrary in some of the books. Though the distinction between felonies and misdemeanors as to punishment has been abolished in the abolition of attainder and forfeiture for crime, other important distinctions remain. Thus: (1) In felonies there may be accessaries, while in misdemeanors all participants are considered principals.12 (2) An arrest is justifiable in case of felonies where it would not be in case of a misdemeanor.18 (3) A killing may be justifiable in preventing, or in effecting an arrest for, a felony, which. would not be justifiable in case of a misdemeanor.1 In some jurisdictions a prosecution for a felony must be by indictment, while prosecutions for misdemeanors may be by information or complaint.15 (5) An indictment may be invalid for a felony which would be sufficient for a misdemeanor.16 (6) A defendant has rights as to peremptory challenge of jurors on trial for a felony which he has not on trial for misdemeanor." (7) On trial for a felony, the defendant must be present throughout the trial, while this is not the case on trial for a misdemeanor.18 12 Post, p. 109. 18 Post, pp. 176, 223. (4) 14 Reneau v. State, 2 Lea (Tenn.) 720, 31 Am. Rep. 626; Handley v. State, 96 Ala. 48, 11 South. 322, 38 Am. St. Rep. 81; State v. Smith, 127 Iowa, 534, 103 N. W. 944, 70 L. R. A. 246, 109 Am. St. Rep. 402, 4 Ann. Cas. 758; Carr v. State, 43 Ark. 99; U. S. v. Rice, 1 Hughes, 560, Fed. Cas. No. 16,153. 15 Clark, Cr. Proc. 107. 16 State v. Edwards, 19 Mo. 674; McCearley v. State, 97 Miss. 556, 52 South. 796. 17 Clark, Cr. Proc. 449. 18 Clark, Cr. Proc. 423. |