priety of thus ad libitum detracting from the plain result of the facts proved, is at least equivocal, particularly in a committing magistrate, who cannot be too cautious of abandoning the broad line of his duty in individual cases. The old and sound rule was always to commit and indict for the larger of any two offences which it appeared probable that the evidence might be sufficient to establish. If this course is pursued, and at the trial the proof does not bear out the larger felony charged, for instance, rape, the prisoner is in no jeopardy of undue conviction for it, and yet may be convicted of the assault; whereas, if originally indicted for the misdemeanour, justice may either be defeated altogether by proof of the greater offence, or is, at all events, obscured by that stopping short from proving the actual facts to their real extent, which on such an indictment would be the only mode of sustaining the charge at all. It has seemed therefore better, in a work of this limited extent, to omit the particular consideration of provisions which will so rarely be found applicable to sessions practice, and the introduction of which in full, with appropriate forms of indictments, would extend this volume without adequate excuse. The offence of breaking into houses and buildings, and stealing therein, introduced into the fourth and fifth editions, has been retained in the present. For like reasons the particular consideration of malicious and felonious injuries to the person, consolidated by Lord Lansdowne's act, 9 G. IV. c. 31, and by 7 & 8 W. IV. and I V. cc. 85, 87, & 90, and of malicious injuries to property as consolidated by 7 & 8 G. IV. c. 30 (with the exception of injuries to cattle, &c., see p. 303), is omitted in this, as well as in the three last preceding editions. Offences amounting to felony, and prompted by malice, are rarer than those instigated by the desire of acquisition; and from their nature and importance can seldom be fit subjects of inquiry at the sessions of the peace. A CHAPTER VI. OF INDICTABLE MISDEMEANOURS, WITH PRECEDENTS SECTIONS. I.-Of Indictable Misdemeanours in general, p. 307. II.-Of Assaults; and herein— 1. Of Common Assaults, p. 314. 2. Of Assaults agyravated by the Nature and Degree of Violence used, p. 319. 3. Of Assaults aggravated by Intent to commit a higher Crime, p. 320. 4. Of Assaults aggravated by the Office or Employment of the Party assaulted, p. 322. III.-Barratry, p. 324. IV.-Challenging and bearing Challenges, p. 325. 1. Of Cheats, indictable at Common Law, p. 326. VIII.-Conspiracy, p. 347. IX.-Cruelty to Children, Servants, or Paupers, p. 358. X.-Embezzlement (not amounting to felony); and herein— 1. Of Embezzlements being Misdemeanours at Common Law, p. 361. 2. Of Embezzlements made Misdemeanours by Statute, p. 362. XI.-Escape and Rescue, p. 364. XII.-Fish, taking in privileged places, p. 373. XIII.-Forcible Entry and Detainer, p. 375. XIV.-Forestalling, Regrating, and Engrossing, p. 380. XV.-Game, offences relating to, p. 380. XVI.-Indecencies, p. 388; and herein 1. Of Offences against Religion and Public Worship, p. 389. 2. Of Offences against the Queen and Government, and Magistrates, p. 391. 3. Of Offences against Public Decency and Feeling, p. 393. XVII.-Nuisances; and herein 1. Of Omissions to repair Public Highways and Bridges, p. 394. 3. Of Carrying on unwholesome, noisy, or immoral Trades, &c., p. 422. XVIII.-Offices, Offences relating to; and herein 1. Of Refusing to accept Offices, p. 429. 2. Of Extortion, Oppression, and Fraud in Office, p. 432. 3. Of Neglect and Ill-performance of Duty, p. 434. XIX.-Orders of Justices, disobeying, p. 439. XX.—Receiving things unlawfully (but not feloniously) obtained or embezzled, P. 443. XXI.-Records, stealing or destroying, p. 444. XXII.-Riots, Routs, and Unlawful Assemblies, p. 445. XXIII.-Solicitations to commit Offences, p. 449. XXIV.-Spring Guns, &c. setting illegally, p. 452. XXV.-Wills, purloining or destroying, p. 453. XXVI.—Writings relating to Real Estate, purloining or concealing, p. 454. SECTION I. OF INDICTABLE MISDEMEANOURS IN GENEral. THE term misdemeanour includes every indictable offence below the degree of felony. It is thus distinguished from the higher class of crimes by a line of boundary which cannot be mistaken; but its extent downwards is less capable of being marked with precision. As the moral criminality of an act or omission cannot be the criterion of legal responsibility attendant upon it, the question has sometimes arisen whether conduct undoubtedly blameable is punishable by law, or is left by it to the sting of conscience and the indignation of society. So in cases of injury done to an individual, doubts have been occasionally suggested whether the wrong doer was amenable to criminal justice, or liable only to be compelled to make compensation by civil process (a). These difficulties only arise in reference to cases unprovided for by statute; for, of course, when an act is made a misdemeanour by statute, no doubt as to its character can arise; and when it is prohibited either with or without a specific penalty, a plain rule of construction will determine the ques (a) The following illustrates the distinction between public and indictable, and private and actionable injuries. Two indictments were preferred for two misdemeanours. The first was for scattering over the private enclosed 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.-Mr. Dickinson's note. tion, whether it is indictable, or to be otherwise visited with penalties. It may be laid down as a general rule, that in order to constitute a culpable act a misdemeanour at common law, it must either consist of an attempt to commit an offence clearly indictable; or it must violate the public peace; or it must have a direct tendency to injure the public by causing the peace to be disturbed; or the moral feeling of the public to be injured or insulted; or the course of justice to be assailed or vilified; or public rights to be invaded; or the ordinary securities of dealing to be unsettled by frauds against which ordinary prudence cannot guard. In the application of this rule to particular instances, there has been occasional uncertainty, which renders it necessary to look more closely than to abstract principle (b). It will, therefore, be necessary to enumerate the general heads of misdemeanour at common law, as well as to state the law applicable to statutory prohibition; and to glance at some cases which have been considered doubtful. Misdemeanours indictable at Common Law.]—The following are the principal classes of misdemeanours indictable at common law, and cognizable by a court of sessions of the peace. 1. Breaches of the peace; -as assaults with or without battery; affrays; combats, whether from anger or for money; riots, and forcible entries. 2. Acts, which, being without legal warrant or excuse, tend directly, or have been holden to tend, to produce breaches of the peace, as challenges, and letters provocative of challenge, except libels which are now expressly taken out of the cognizance of sessions. 3. All nuisances generally affecting the public, as the carrying on unwholesome trades in crowded neighbourhoods, obstructing or encroaching on highways, bridges, or harbours, and omitting to perform the duty of repairing them, or houses standing on them (c). Keeping a ground for shooting pigeons near a highway, the consequence of which was that persons collected outside to shoot at the birds which escaped from the ground, thus making a great noise, and endangering the public, is indictable, for the nuisance is of a public nature, though occasioned by an act in itself innocent (d). 4. Outrages on public decency or feeling, as the exhibition of inde (b) E. g. a written libel is the subject of indictment, secus of words however likely by their nature to occasion breach of the peace. (c) Reg. v. Watts, Salk. 357; S. C. 2 Ld. Raym. 856; Raym. Entries 25, cited 9 B. & C. 730; S. C. post; R. v. Gregory, 5 B. & Adol. 555. (d) R. v. Moore (Charles), 3 B. & Adol. 184. cent prints, exposure of the person, openly keeping brothels, and removing dead bodies from the grave. 5. Indecent attacks on the religion established by law, and wilful disturbances of divine service, whether performed in the established church, or in protestant dissenting, or Roman catholic chapels. 6. All contempts and obstructions of the execution of powers granted by statute (e), or of courts of law and magistrates in the discharge of their duty; attempts to prevent the course of justice, by abstracting a witness (ƒ), and all interference with the process of the law, as escapes and rescues. 7. All corrupt breaches of duty in public officers, and refusals to execute offices by parties required by law to serve them. 8. All attempts to commit an offence, whether felony or misdemeanour; as for example, an attempt to obtain money on false pretences (g), bribe a public officer (h) or a juryman (i) in their duty, or to bribe a person to commit an offence (k), or to prevail on him to commit perjury, or to provoke him to send a challenge (1), and all solicitations of another to commit any crime soever, which are no less criminal though they may fail (m). Again, the attempt to commit a misdemeanour created by statute, is in itself a misdemeanour at common law (n). It may be observed, that although a bare criminal intent is not in itself indictable, if merely expressed in words or gestures, or otherwise, without further proceeding to the crime to which it points, yet if it is accompanied by any act being a proximate step (o) and attempt towards the accomplishment of the crime, that act, though in itself out of the reach of indictment, will not be judged alone, but as coupled with the criminal intent which prompted it, and is therefore punishable on indictment (p). (e) R. v. Smith, et al. 2 Doug. 441; and the indictment should not conclude "contra formam statuti,” ibid. (f) We have seen that perjury, &c., is out of the purview of sessions. (9) E. g. by asking a pawnbroker to advance money on articles which pri. soner stated to be silver, but which were not, and no money was lent, Reg. v. Bell, C. & Mar. 249. (h) R. v. Vaughan, 4 Burr. 2494. (i) Young's case, cited in R. v. Higgins, 2 East, 14, 16. (*) Per Lord Eldon, Ch., Wade v. Broughton, 2 V. & B. 173; see Harding V. Stokes, T. & Gr. 599. (1) R. v. Phillips, 6 East, 463. (m) Per Lord Mansfield, in R. v. Scofield, Cald. 400; East, P. C. 1030, S. C.; R. v. Higgins, 2 East, 5. See 3 (0) In Reg. v. Meredith, 8 C. & P. 589, Lord Abinger said, that an attempt to commit a misdemeanour is not indictable unless there be some illegal act done, and that taking any step towards committing a misdemeanour, unless by an illegal act, is not sufficient. (p) See per Lord Mansfield, in R. v. Scofield, Cald. 400; East's P. C. 1030, S. C. The facts are stated, post, Ch. VII. s. 15, note. Also Fuller's case, East's P. C. 92; Bacon's case, 1 Levinz, |