We have seen that toward many wrongful acts the government of the State assumes an attitude of indifference, and will notice them only at the suit of a person who feels himself injured by them. These acts are of such a nature that they are supposed to affect private persons only, and are called "torts." But many wrongs, particularly those of a more atrocious character, are injurious to the community at large as well as to the individual who receives the immediate injury. The community as a whole are interested in having such acts suppressed. These wrongs the State forbids and undertakes to prevent by the punishment in its own name of those who commit them. It is to this class of acts that the term "crime" is applied. Torts and crimes bear a close resemblance to each other, and it is therefore necessary to note carefully the distinction between them. This has been stated in various ways. Some writers lay stress upon the degree of atrocity in the act itself, that which is least atrocious being said to be a tort, and that which is more so a crime. Others emphasize the fact that the one is public wrong, while the other is a mere private wrong. Thus Blackstone says that the distinction between a tort and a crime is this: A tort or private wrong is " an infringement or privation of the civil rights which belong to individuals, considered merely as individuals," while a crime or public wrong is a "breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity." 2 These statements, however, do not bring out the true distinction, for the same act may be both a tort and a crime. The real distinction is found in the respective modes of redress. When an act is made the ground of prosecution and punishment by the State or sovereign on its own responsibility and in its own name, it is a crime. Whenever an act may be made the subject of a private suit for damages, it is a tort. An act which is punishable as a crime may also cause special injury to individuals and give rise to a civil action, if they can show that the injury suffered by them is distinct from that suffered by the general public. The act is then a crime or tort according to the remedy pursued. For example, if A knocks B down, the act is called technically an "assault and battery." B may sue A for damages. For this purpose the act is a tort. A, however, may also be arrested, prosecuted, and punished by the State. For this purpose the act is a crime. There are many other examples, as in the case of a nuisance, a libel, a trespass or conversion amounting also to larceny, embezzlement, or robbery, etc. Under modern statutes giving a right of civil action for a death caused by wrongful act, even a murder may give rise to a civil action, and therefore be a tort.3 2. 4 Blackstone Comm. 5. 5 § 86. How the Criminal Law is Prescribed. No act can be punished as a crime unless it is prohibited and made punishable by law both at the time of its commission and at the time it is sought to punish therefor. An act may be prohibited and made punishable either by the common law or by statute. In most of the United States the criminal law is partly made up of commonlaw principles and partly embodied in statutes; some acts being punishable only by statute, while other acts not covered by the statutes, and which were punishable at common law, are still so punishable. In all of the States the common law of crimes has been greatly changed by statute; and in a few States it has been decided, either by statute or by judicial decision, that the common law of crimes is not a part of the criminal law of those States, but that their criminal law is to be taken only from statutes in which the entire system is supposed to be embodied." Even in these States, however, as well as in others, the principles of the common law are resorted to in the construction of statutory provisions." As we have seen, there is no common law of the United States as distinguished from the individual States. The federal courts have no common-law jurisdiction in criminal cases. Therefore no act can be punished as a crime against the United States, unless an act of congress has declared it a crime and prescribed the punishment and the court which shall have jurisdiction of the offense. § 87. Classification of Crimes. Crimes are classified, according to their enormity in the eye of the law, into (1) treason, (2) felonies, and (3) misdemeanors. 3. Smith Elem. L. 133. See 12 Сус. 130. "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 the subordinate of the sovereign, is a crime." Austin Jur. § 17. 4. See 12 Cус. 139. A statute punishing an act committed before its enactment is called an ex post facto law, and in this country is prohibited by the constitution of the United States. See supra, §§ 40, 53; 8 Сус. 1027. On the other hand, if the law in force when an act was committed, and under which it might have been punished, is repealed without a saving clause before it is sought to punish therefor, no punishment can be imposed. See 12 Сус. 139, 144. 5. As to the common law generally see supra, §§ 30, 31, 34. As to statutes see supra, §§ 38, 41, 44, 46 et seq. And see 12 Cyc. 140 et seq. 6. See 8 Cyc. 383, 384; 12 Сус. 140. Crimes are defined and punished only by statute in Indiana, Iowa, Louisiana, New York (Pen. Code, § 2), Ohio, and Texas. As to the creation and definition of crimes by statute see 12 Сус. 141 et seq. 7. See Smith Elem. L. 134; 8 Сус. 384, 385; 12 Сус. 141. 8. See supra, § 34. 9. See 8 Cyс. 385, 386. At common law high treason consisted in compassing or imagining the death of the sovereign, levying war against him, adhering to his enemies, giving them aid and comfort, and certain other acts against the sovereign; and petit 10 treason consisted in the murder of a superior by an inferior, as of a husband by his wife, a master by his servant, or a lord or ordinary by an ecclesiastic. 11 In this country what was petit treason at common law is merely homicide - murder, manslaughter, etc., according to the circumstances. Treason against the United States is defined in the federal constitution as consisting "only in levying war against them, or in adhering to their enemies, giving them aid and comfort." 12 The same definition is regarded as marking the limits of the crime of treason against the individual States. Treason forms a class of its own, because from the legal point of view it is the greatest of all crimes. It is regarded as such a fundamental attack upon the order of society that no other crime is entitled to be classed with it. It is an attempt to undermine the very existence of the state; and although the law looks upon all crimes as serious offenses, in the punishment of which the state has a positive interest, it regards the existence of the state itself as the one condition upon which all law and order depend, and any attack upon it as a crime of such enormity that all others pale before it. Under the term "felony" were included, at common law, all crimes, exclusive of treason, which under the old English law were punishable by death and forfeiture of lands or goods.13 These were murder, manslaughter, rape, sodomy, arson, larceny, robbery, and burglary. They will be defined in a subsequent section.14 Forfeiture for felony has been abolished both in England and in the United States, and only murder and, in some States, rape are now punishable by death;15 but in most States all crimes which were felonies at common law are still felonies, and other crimes have been made felonies by statute. In many of the States by statute all crimes which are punishable by confinement in the state prison are felonies. 16 Misdemeanors include all crimes less than felonies. Among others may be mentioned forgery, cheating, libel, assault and battery, affray, bigamy, bribery, conspiracy, counterfeiting, perjury, etc.17 As we have seen above, the term "felony" at the common law covered only a limited number of crimes; but in the States of this country many crimes which were not felonies at common law are made so by statute, being either expressly declared to be so, or such a penalty being attached to them as to bring them within the meaning of the term. To distinguish these new felonies from those which existed under the common law, they are called "statute felonies." 10. Pronounced "petty." 11. 4 Blackstone Comm. 75, 76; 12 Сус. 131. 12. U. S. Const. art. 3, § 3. 13. 4 Blackstone Comm. 94. 14. See infra, § 88, b. 15. In some States capital punish ment has been entirely abolished. 16. See 12 Сус. 131, 132. 17. See infra, § 88, c. § 88. Particular Crimes - a. In General. It is not within the scope of this work to treat of or even to define all the crimes. The student will get all of this in the course on "Criminal Law." It is sufficient here to refer very shortly to the more important crimes. Treason has already been defined.18 We have also seen that the common-law felonies were (1) murder, (2) manslaughter, (3) rape, (4) sodomy, (5) arson, (6) larceny, (7) robbery, and (8) burglary. We may now define and shortly consider these. After that reference will be made to certain other well-known offenses which were misdemeanors at common law, but many of which have been made felonies by statute. b. The Common-Law Felonies. Murder. - Murder at common law is the unlawful killing of any human being 19 with malice aforethought.20 The term "homicide" applies to any killing of a human being. It may be (1) murder, as just defined, or (2) manslaughter, as defined below; both of which are felonious homicides. Or it may be (3) justifiable, in which case there is no crime, as where the proper officer legally executes a criminal condemned to death, where a person, not being in fault himself, kills another in necessary defense of life or limb, or where one necessarily kills another to prevent rape, robbery, or some other felony attempted by force or surprise, and in certain other cases. Or it may be (4) excusable, and not now punishable, as where it is the result of accident in the performance of a lawful act without criminal negligence, or where one kills another in necessary self-defense in a sudden affray or encounter. 22 If a homicide is not justifiable or excusable, it is either murder or manslaughter. 21 The distinguishing characteristic of murder is the "malice aforethought." This is a very technical expression and we cannot go at any length into its meaning now. It has been defined generally as "that condition of mind which shows a heart regardless of social duty, and fatally bent on mischief." The necessary malice may be either express, as where one unlawfully kills another intentionally and without justification, excuse, or mitigation; or it may be implied from the circumstances of the killing, as where one kills another, even unintentionally, in an attempt to commit some other felony, like burglary or robbery, or in wantonly doing an act which is likely to cause death or great bodily harm. 23 In many States the common law in relation to murder has been very materially changed by statute. In some States murder has been divided into degrees according to the circumstances of the killing.24 18. See supra, § 87. 19. A child in its mother's womb is not a human being within this definition, and therefore, to destroy it is not murder, but a mere misdemeanor, unless it is born alive and afterward dies from the injuries received. See 21 Сус. 662. 20. 4 Blackstone Comm. 195; 21 Сус. 703. 21. See 21 Cyc. 793 et seq.; and infra, § 89, j. 22. See 21 Cус. 795, 800, 831; and infra, § 89, i, j. Manslaughter.- Manslaughter is the unlawful killing of another without malice aforethought. It is either voluntary or involuntary, the former being where the killing is intentional and the latter where it is not. Voluntary manslaughter is where one kills another intentionally, but in a sudden heat of passion caused by adequate provocation, and not with malice. If there is malice the killing is murder notwithstanding the provocation. 25 The provocations deemed sufficient to reduce a homicide to manslaughter are an assault and battery, mutual sudden combat, detecting one's wife in the act of adultery, illegal arrest or detention, etc.; but as a rule mere words or gestures, however offensive, insulting, or abusive, are not sufficient. 26 Involuntary manslaughter is the killing of another without malice and unintentionally, but (1) in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. An illustration under the first head is where a man assaults and beats another, not in a way manifestly tending to cause death or great bodily harm, and unintentionally kills him. An illustration under the second head is where one unintentionally kills another by careless driving or careless handling of firearms. And an illustration under the third head is where a railroad employee causes death by neglect of his duty to regard or give signals or set switches.27 Rape. Rape is defined by Blackstone as "the carnal knowledge of a woman forcibly and against her will." This defini 23. See 21 Cyc. 703 et seq.; Clark Cr. L. (2d ed.) 187. 24. This will be seen in the course on "Criminal Law." 25. See 21 Сус. 739. If between the provocation and the killing the slayer's blood had cooled, or if there was reasonable time for it to cool, the homicide is imputed to malice and is murder. See 21 Cyc. 758. 26. See 21 Cyc. 741 et seq.; Clark Cr. L. (2d ed.) 197. 27. See 21 Cyc. 760 et seq.; Clark Cr. L. (2d ed.) 204. |