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force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it, coupled with a present ability, or according to some of the courts an apparent ability, to carry such intention into effect. And a battery, or, as it is sometimes called, an assault and battery, is any unlawful touching of the person of another by the aggressor himself or by a substance put in motion by him." The force or violence attempted or offered must be physical, and no words of themselves can constitute an assault.72 An assault, or assault and battery, is either (1) common, that is, where there are no aggravating circumstances, or (2) aggravated, that is, where there are aggravating circumstances, as in the case of assault with intent to kill or rape, or to inflict grievous bodily harm.73

False Imprisonment.- False imprisonment is any unlawful restraint of a person's liberty, and is a misdemeanor at common law. The crime is committed whenever a person detains the body of another by force, without his consent, and without legal cause. Two things are necessary: (1) There must be an imprisonment; and (2) the imprisonment must be unlawful. Every confinement of a person is an imprisonment, whether it be in a jail, or in a private house, or merely by detaining him for a moment in the street.75

99 78

Kidnapping.- Under the old common law kidnapping was "the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another; but with us sending the person into a foreign country is not necessary. The offense may be defined as a false imprisonment aggravated by conveying, or in some States the mere attempt to convey, the person imprisoned to another place. It is a misdemeanor at common law."

Abduction. Abduction may be defined as the taking of a female without her consent, or without the consent of her parents or guardian, for the purpose of rape, marriage, or prostitution. It was probably not a crime at common law, unless as kidnapping, except where there was a conspiracy, in which case the conspiracy

71. See 3 Cyc. 1020, 1021. It is a battery to spit on another, to push him angrily out of the way, to put a dog on him which actually bites or even touches him, or to inflict injury by administering poisonous or injurious drugs. To shoot,

strike, or spit at a person and miss him, or to set a dog on him which does not touch him, is an assault, but not a battery. An assault may not result in a battery, but every battery


necessarily includes an assault.
the force is not applied, there is an
assault only; if it is applied, there
is an assault and battery. Clark Cr.
L. (2d ed.) 229.

72. See 3 Cyc. 1022.
73. See 3 Cyc. 1026.
74. See 19 Cyc. 319, 376.

75. Clark Cr. L. (2d ed.) 247.
76. 4 Blackstone Comm. 219.
77. See 24 Cyc. 796; Clark Cr. L.
(2d ed.) 248.

was the crime; but it was made a crime by an English statute which is old enough to be common law with us and is specifically made a crime by statute in most of our States.78

Cheating. A cheat at common law is the fraudulent obtaining of another's property by means of some false symbol or token, or by other illegal practices which affect or may affect the public, and against which common prudence cannot guard, as by the use of false weights or measures; provided, however, that the act does not amount to the felony, larceny. It is a misdemeanor at common law. 79 To obtain property by mere false representations or lies was not regarded as a crime at common law, but was a mere tort or wrong, against which common prudence could guard; but this is now a crime in most jurisdictions under the statutes punishing the obtaining of property by false pretenses.


Receiving Stolen Goods.-The receiving of stolen goods is possibly a substantive misdemeanor at common law, although this is doubtful.81 It is very generally made a crime by statute. To constitute the offense: (1) The property must have been stolen and it must retain its character as stolen property when it is received. (2) It must be taken into the possession, although not necessarily the manual possession, of the receiver, with the consent of the person from whom it is received.82 (3) The receiver must know that the property was stolen. (4) And he must have the felonious intent, as in the case of larceny.


Malicious Mischief.- Malicious mischief is a misdemeanor at common law, and, although there is some conflict and uncertainty in the authorities, it may be generally defined as any wilful, physical injury to property from ill-will or resentment toward the owner, or, as is held by some courts, from wantonness, and not with intent to steal, as in the case of larceny.84 More generally,

78. See 1 Cyc. 141; Clark Cr. L. (2d ed.) 250.

79. See 19 Cyc. 386; Clark Cr. L. (2d ed.) 314.

80. See 19 Cyc. 390.

81. It seems probable that at common law one who received stolen goods knowing them to have been stolen was only guilty of a misprision or a compounding of a felony (as to which see infra, this section), and afterward, under an English statute, as accessary after the fact to the larceny (as to which see infra, § 92), although there is authority for saying that the reception of stolen goods was a substantive misdemeanor at common law. See Receiving Stolen Goods," Cyc. ; Clark Cr. L. (2d ed.) 327.


82. A person may commit larceny. and not the crime of receiving stolen goods, by taking goods from one who has stolen them, if they are taken without his consent.

83. See supra, § 88, b.

One who receives goods, although knowing them to have been stolen, is not guilty of receiving stolen goods, if his purpose is to return them to the owner, or merely to detect the thief. See "Receiving Stolen Goods," Cyc. -; Clark Cr. L. (2d ed.)

310, 329.
84. See 25 Cyc. 1672; Clark Cr. L.
(2d ed.) 330.

Thus it is a crime at common law to deface tombs and monuments, although they are real estate, to maliciously injure trees, to tear off and

the offense may be defined as including all malicious and physical injuries to the rights of another, which impair utility or materially diminish value.85

Nuisance. A common or public nuisance, the creation or maintenance of which is a misdemeanor at common law, is a condition of things which is prejudicial to the health, comfort, safety, property, sense of decency, or morals of the community at large; and it may result either from an act not warranted by law, or from neglect of a duty imposed by law. To constitute a public nuisance the condition of things must be such as to injuriously affect the community at large, and not merely one or even a few individuals.8

Forgery and Uttering.-At common law forgery is a misdemeanor, but it is very generally made a felony by statute. It consists, at common law, in the false making or material altering, with intent to defraud, of any writing, which, if genuine, might actually or apparently be of legal efficacy or the foundation of a legal liability; or, as it has been otherwise expressed, of any writing to the prejudice of another man's right.87 To constitute this crime: (1) The making or alteration must be (2) It must be with intent to defraud.89 (3) The instrument, as made or altered, must be of actual or at least apparent legal efficacy to impose a liability, or, in case of alteration of an instrument, to change a liability.90 (4) And the alteration must therefore be material. To utter a forged instrument is to offer it, directly or indirectly, by words or actions as good. This, if done with intent to defraud, and with knowledge of the falsity of the instrument, being an attempt to cheat, is a misdemeanor at common law.9 Bigamy.- Bigamy is a statutory, and not a common-law crime. carry away fixtures attached to real agreed to. See 19 Cyc. 1376; Clark property, or to kill an animal, pro- Cr. L. (2d ed.) 341. vided, in all cases, there is the necessary malice.

85. See 25 Cyc. 1672.

86. See 29 Cyc. 1252, 1278; Clark Cr. L. (2d ed.) 345.

87. See 19 Cyc. 1370; Clark Cr. L. (2d ed.) 333.

88. Thus signing as agent of another without authority is not forgery, as this is a mere false assumption of authority, and not the false making of an instrument.

89. Fraudulent intent is essential to this crime. It is no forgery therefore for one to carelessly write another's name without any purpose, or to insert in a contract which has been signed a provision which he understands the other party to have


90. Thus it is not a forgery to make a writing which is invalid on its face, as in the case of a will not signed by the requisite number of witnesses, or to write the name of a witness on a paper not required to be witnessed, or to falsely make a bank-note which a statute declares void, since all persons are presumed to know the law. But an instrument which is valid on its face, and is rendered invalid only because of extrinsic facts, may be the subject of forgery, as people are not presumed to know the facts. See 19 Cyc. 1379; Clark Cr. L. (2d ed.) 339.

91. See 19 Cyc. 1388; Clark Cr. L. (2d ed.) 343.

It is committed where one, being legally married, marries another person during the life of his or her wife or husband.92

Adultery. This was not a common-law crime in England, but was regarded as a crime against the ecclesiastical law only, and was therefore punished exclusively in the ecclesiastical courts. With us a few courts have recognized this portion of the ecclesiastical law as part of our common law, and have regarded adultery as a common-law crime. Most courts, however, have taken the contrary view, and hold that, if it is not made a crime by statute, it cannot be punished at all as a distinctive crime, unless it amounts to open and notorious illicit cohabitation.93

Lewdness.- For man and woman to illicitly cohabit together, openly and notoriously, or for a person to be guilty of any open and notorious lewdness and indecency, is a crime at common law, as it constitutes a public scandal and nuisance.94

Incest. This was not a crime at common law, but was punishable in the ecclesiastical courts only. It is, however, very generally declared a crime by statute. It may be defined broadly as illicit sexual intercourse between persons who are related within the degrees of consanguinity or affinity wherein marriage is prohibited by law.95

Miscegenation.- Miscegenation, or intermarriage between persons of different races, and more particularly between the white and negro races, or the living together of such persons in adultery or fornication, while it is not a crime at common law, is a statutory crime in some of the States.9


Seduction. This is probably not a crime at common law, but it is made so by statute in most of the States. It may be defined generally as the act of a man in enticing a woman of previous chaste character, by means of persuasion and promises, or more particularly promise of marriage, to have sexual intercourse with him.97

92. See 5 Cyc. 688; Clark Cr. L. (2d ed.) 353.

In England, prior to the statute of James I, enacted in 1604, bigamy was punished in the ecclesiastical courts only. By that statute it was made a crime punishable in the civil courts. With us all the States have statutes defining and punishing this crime.

The statutes generally except from their operation (1) a person whose husband or wife has been absent for a certain number of years (usually seven) without being known by such person to be living within that time

(see supra, § 60 note 3); and (2) a person whose marriage has been declared void, null, or dissolved by the judgment of a court of competent jurisdiction.

93. See 1 Cyc. 952; Clark Cr. L. (2d ed.) 356, 358.

94. See 25 Cyc. 210; Clark Cr. L. (2d ed.) 362.

95. See 22 Cyc. 43.

96. See 27 Cyc. 798; and infra, § 152.

97. See "Seduction,"

; Clark Cr. L. (2d ed.) 368.


Abortion. To procure an abortion is to cause or procure the miscarriage or premature delivery of a woman. To do this, although with the mother's consent, after the child has quickened, is a misdemeanor at common law, but it is doubtful whether it is a crime before the child has quickened. There are statutes in most of the States, however, making it a felony to procure an abortion, whether the child has quickened or not.98

Barratry, Maintenance, and Champerty.- These three offenses have some features in common, and are all old common-law misdemeanors, because encouragement of strife and litigation is injurious to the public interests.99 Common barratry is the offense of frequently exciting and stirring up quarrels and suits, either at common law or otherwise.1 Maintenance is the officious intermeddling in a suit that in no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it.2 Champerty is a bargain with a plaintiff or defendant to divide the land or other matter sued for between them if they prevail at law, whereupon the champertor is to carry on the party's suit at his own expense.3 These are not at the present time regarded as crimes to the same extent as under the old common law.*

Obstructing Justice. It is a misdemeanor at common law to obstruct private or public justice, as by resisting or restraining a public officer in the exercise of his duty, or preventing the attendance of witnesses, or tampering with witnesses, etc.

Embracery. Embracery is an attempt to influence a jury corruptly to one side, by promises, persuasions, entreaties, money, entertainments, and the like, and is a common law misdemeanor.


Escape, Prison Breach, and Rescue. These common-law misdemeanors are in a sense related. The crime of escape is committed (1) by an officer or other person who, having lawful custody of a prisoner, voluntarily or negligently allows him to depart from such custody otherwise than in due process of law; or (2) by a prisoner, who voluntarily departs from lawful custody without breach of prison." Prison breach is a breaking and going out of his place of confinement, by one who is lawfully imprisoned. 98. See 1 Cyc. 170; Clark Cr. L. 6. See 15 Cyc. 539; Clark Cr. L. (2d ed.) 373. (2d ed.) 380.

99. Clark Cr. L. (2d ed.) 376, 377. 1. See 5 Cyc. 617.

2. See 6 Cyc. 851. 3. See 6 Cyc. 850.

4. For instance, in many States a lawyer may now take a case on a contingent fee, and also pay costs and expenses. See 6 Cyc. 854, 858.

5. See 29 Cyc. 1326; Clark Cr. L. (2d ed.) 379.

7. See 16 Cyc. 538; Clark Cr. L. (2d ed.) 381.


8. Under the old common law any prison breach was a felony, but this was changed by a statute which is part of our common law (1 Edw. II, St. 2), and now it is a felony only where the imprisonment is for a felony, and a misdemeanor in other


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