2. Of Assaults aggravated by the Nature and Degree of Violence used. 3. Of Assaults aggravated by the Intent to commit a higher Crime. 4. Of Assaults aggravated by the Office or Employment of the Party assaulted. 3. Barratry. 4. Challenging and bearing Challenges. 5. Cheats and False Pretences; and herein, 1. Of Cheats indictable at Common Law. 2. Of False Pretences indictable by Statute. 6. Coin, Misdemeanors affecting. 7. Compounding Offences. 8. Conspiracy. 9. Embezzlement (not felonious); and herein, 1. Of Embezzlement at Common Law. 2. Of Embezzlement by Statute. 10. Escape and Rescue. 11. Fish, taking in privileged Places. 12. Forcible Entry and Detainer. 13. Forestalling, Regrating, and Engrossing. 14. Game, Offences relating to. 15. Indecencies; and herein, 1. Of Offences against Religion and Public Worship. 2. Of Offences against the King and Government, and Ma gistrates. 3. Of Offences against public Decency and Feeling. 16. Libels. § 17. Nuisances; and herein, 1. Of Omissions to Repair Highways and Bridges. 2. Of Obstruction of Ways, Bridges, and Rivers. 3. Of Carrying on unwholesome, noisy, or immoral 18. Offices, Offences relating to; and herein, 1. Of Refusing to accept Offices. 2. Of Extortion, Oppression, and Fraud in Office. 3. Of Neglect and Ill-performance of Duty. - 19. Orders of Justices, disobeying. - 20. Receiving Things unlawfully obtained or embezzled. 21. Records, purloining or destroying. - 22. Riots, Routs, and Unlawful Assemblies, - 23. Solicitations to common Offences. 24. Spring Guns, setting illegally. 25. Wills, purloining or destroying. - 26. Writings relating to Real Estate, purloining or concealing. § 1. OF INDICTABLE MISDEMEANORS IN GENERAL. MISDEMEANOR has been, in many works on jurispru- Misdemeanors. dence, somewhat loosely declared to be "any crime that is less than felony." This may be colloquially satisfactory as a general description, but it imparts no precise or critical definition of the specific offence. It informs us, indeed, what misdemeanor is not, but it gives us very imperfect notions of what it is. Misdemeanors are divisible into two kinds; viz. those declared by statute, and those which are indictable at common law. Statutable misdemeanors may not be comprehended under a precise and specific definition, because the offences themselves, which the respective statutes have so denominated, are various and diversified in their nature; but they have the one characteristic distinction of being "less than felony" in common. Respecting these, however, there can be few difficulties, at least beyond those of mere practical moment, and such will be considered hereafter; because the offences themselves are described, if not actually created, by the statutes respectively made for the punishment of them; and in instances where the specific mode of punishment is not directed, it is uniformly understood to be that annexed by the common law to misdemeanors, viz. fine and imprisonment. But MISDEMEANORS AT COMMON LAW are not so Misdemeanors easily characterised, as is apparent from the circumstance at common law of bills of indictment having been occasionally pre- -description of. Classes of indictable misdemeanors. sented on account of acts done, which have been considered by the prosecutors as flagrant violations of propriety, but which the courts have refused to regard and punish as misdemeanors; as well as other cases, in which great doubts have been expressed by courts, and elaborate arguments employed by counsel, before arriving at a conclusion respecting the quality, or even the existence of a public offence, in the imputed act. (a) Misdemeanor, in its primary and familiar sense, means nothing more than trespass generally (the word used in the commission of the peace); in its legal construction, to become the subject of indictment before a court and jury, it may perhaps be described, with a reasonable approach towards correctness, to include "all actual breaches of the peace, and such offences against good manners, or good morals, as tend to injure the public, (b) either directly or consequentially, but which do not amount to any higher species of crime." If we look through the catalogue of offences which have been determined to be indictable as misdemeanors at common law, we shall find that they all fall within this definition, or more correctly speaking, description. The following summary of the classes of indictable misdemeanors may suffice for the present work. 1. All actual breaches of the peace are indictable by reason of the public disturbances which they create ;-as assaults, with or without battery; affrays; prize fights; riots; and forcible entries. 2. All unwarranted acts which directly and immediately (a) See Hawk. b. 2. c. 25. s. 24; the King v. Southerton, 6 East. R. 126; the King v. Richards, 8 T. R. 634; and 1 Russell on Crimes, chap. 3. (b) The discrimination involved in the different receptions which the two following indictments, arising out of different portions of the same transaction, encountered at a Middlesex session, though not cited as any authority on the subject generally, are peculiarly illustrative of the distinction between the public and indictable, and the private and actionable injuries. Two indictments were preferred against A. B. as for two misdemeanors. The first was for scattering over the private inclosed premises of the prosecutor wilfully, and with intent to destroy his poultry, divers quantities of poisoned corn, whereby, and by means whereof, great quantities of his poultry were actually destroyed. The second was for committing a similar offence and with the same design, on a public highway contiguous to the premises of the prosecutor. The first bill was dismissed as being only a private and individual injury, and a proper subject for an action. The second was holden to be a public nuisance, and a proper subject for an indictment. tend to a breach of the peace, and those to which legal construction has affixed such a tendency, as libels on individuals whether true or false. 3. All nuisances generally affecting the public, as the carrying on unwholesome trades in crowded neighbourhoods, obstructing highways or bridges, and omitting to perform the duty of repairing them. 4. All outrages on public decency or feeling, as the exhibition of indecent prints, exposure of the person, openly keeping brothels, and removing dead bodies from the grave.. 5. All words or writings tending to incite sedition, or to produce an alteration, by illegal violence, in any public institutions or laws. 6. All indecent attacks on the religion established by law, and wilful disturbances of divine service, whether performed in the Established Church, or in Protestant or Catholic chapels. 7. All contempts and obstructions of courts of law and magistrates in the discharge of their duty; all attempts to prevent the course of justice, as by perjury, or subornation of perjury, or abstracting a witness; and all interference with the process of the law, as escapes and rescues. 8. All corrupt breaches of duty in public officers, and refusal to execute offices when required by law to serve them. 9. All attempts to commit offences, whether felony or misdemeanor, as an attempt to bribe a public officer, (c) or a juryman; (d) and an attempt to prevail on a party to commit perjury; and all solicitations of others to commit crimes, though the attempts and solicitations may fail. (e) Under this head it may be observed, that although a criminal intention in itself is not indictable, if merely expressed in words, yet if it be coupled with an act, as a step towards the accomplishment of a crime, the act, though innocent in itself, will be coupled with the intention, and become punishable by indictment. Thus the mere possession of counterfeit coin, not being an act, is not per se indictable, though there may be an intent to utter it; (f) but if the possession be detected under cir The King v. Vaughan, 4 Burr. R. 2494. (d) Young's case, cited in the King v. Higgins, 2 East. R. 14. 16. (e) By Lord Mansfield, in the King v. Scofield, Cald. 400. The King v. Stewart, Russ. and Ry. 288; the King v. Heath, Russ and Ry. 184. Offences pro hibited by statute. cumstances which lead to the belief that it was obtained with intent to utter it, such obtaining will be unquestionably a substantive offence. (g) 10. All offences created or declared to be misdemeanors by statute are, of course, indictable as such by force of the statute, in an indictment concluding contrary to its form; but where a statute creates an offence, not having been such previously at common law, and goes on in the prohibitory clause to annex a penalty, to be levied in a particular mode, as in the usual words, "on pain of such a penalty or punishment, to be levied on conviction before one or more justices of the peace;" in such case the specific penalty or punishment can alone be inflicted by the specified mode, and no indictment will lie for infringement or disobedience. (h) On the other hand, if the prohibition to do the particular offensive act be general in the first instance, and then a specific penalty or punishment be provided by a separate and subsequent section, a prosecutor has his option of proceeding for the penalty provided by the statute, or of indicting for disobedience to the prohibition; on the same principle, that if a statute only enjoined or prohibited an act, without annexing any specific penalty or punishment, indictment would be the mode of proceeding to punish the offence of disobedience, or infringement. (i) When a statute only gives an additional penalty, or inflicts an additional punishment for an offence previously indictable, and does not prohibit the manner of proceeding according to the old law on the subject, the new penalty or punishment is cumulative, and the prosecutor may proceed either according to the old or the new law. (j) Conformably with these observations it is clear that the father of a bastard child, disobeying the order of justices for maintenance, may be either indicted for such disobedience according to the remedy in use before the 49 Geo. 3. c. 68. which gave a summary remedy by the warrant of a justice, or he may be punished, at the option of the parish aggrieved, according to the provisions of the last-mentioned statute, by a summary process before a justice. So constables and parish officers may either be punished by indictment for (g) The King v. Fuller and Robinson, Russ. and Ry. 308. (h) The King v. Wright, 1 Burr. 543; the King v. Douse, 1 Lord Raym. 672. 8 Per Ashurst, J., in the King v. Harris, 4 T. R. 205. |