ute, but not otherwise wrong.* 44 This distinction has been criticized, but it is clear, and is often of the utmost importance.45

6. The Merger of Offenses.

The same act often involves several offenses, felonies, or misdemanors, or both. Thus, every murder or rape, and every robbery by actual violence, includes an assault

perjury and subornation of perjury, arson, burglary, robbery, sodomy, or other crime against nature, incest, larceny, forgery, counterfeiting, and bigamy. Crim. Code Ill. c. 38, par. 458.

44 Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, Beale's Cas. 204.

45 Thus, as we shall see in dealing with assault and battery and homicide, and with criminal intent, a person who, in doing an act, causes results not intended by him, may be punished for such results if his act was malum in se, whereas he may not be punishable if it was merely malum prohibitum. A man who intentionally assaults and beats another is guilty of manslaughter if he unintentionally kills him, because the assault and battery is malum in se. Post, 263. But it has been held that a person who accidentally drives over and injures another while driving at a speed prohibited by a statute or city ordinance. but not recklessly, is not guilty of a criminal assault and battery (and, if this is true, he would not be guilty of manslaughter if death should result), as the excessive speed is only wrong be

and battery.

Every robbery includes larceny. And when arson is committed, and a person is thereby burned to death, there is both arson and murder. So, if a person breaks and enters a house with intent to steal or rape, and accomplishes his purpose, there is burglary, and also larceny or rape. The question arises in such cases, whether there may be a prosecution for any one of these of fenses, at the election of the state, or whether one of them merges and extinguishes the others, so that it alone can be prosecuted. This is what is meant by the merger of offenses.

The common-law rule was that, if the offenses were of different degrees, there was a merger, but not if they were of the same degree. Misdemeanors merged in felonies, as assault and battery in murder, rape, or robbery, and conspiracy to commit a felony in the felony, if committed, etc.46 But there

cause prohibited by the statute or ordinance. Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, Beale's Cas. 204.

46 Com. v. Kingsbury, 5 Mass. 106; State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490; People v. Bruno, 6 Park. Cr. R. (N. Y.) 657; Lambert v. People, 9 Cow. (N. Y.) 578; People v. McKane,

was no merger of a felony in a felony, as in the case of burglary and rape or larceny, robbery and the included larceny, rape and murder, arson and murder, etc.47 Nor was there any merger of a misdemeanor in a misdemeanor, as of an attempt or conspiracy to commit a misdemeanor in the misdemeanor when committed.48

7 Misc. Rep. 478, 28 N. Y. Supp. 397; People v. Thorn, 21 Misc. Rep. 130; People v. Fish, 4 Park. Cr. R. (N. Y.) 206; People v. Richards, 1 Mich. 217; Com. v. Blackburn, 1 Duv. (Ky.) 4; Johnson v. State, 26 N. J. Law, 313.

47 People v. Bristol, 23 Mich. 118; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; State v. Mayberry, 48 Me. 218, 238.

Statutory felonies, as well as felonies at common law, are within this rule. At common law, an assault with intent to rob is a misdemeanor only, and robbery is a felony. At common law, therefore, an assault with intent to rob merges in the robbery if it is committed. There is no merger, however, if an assault with intent to rob is made a felony by statute, as by a statute making it punishable by imprisonment in the state prison. Hamilton v. State, supra.

48 State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; State v. Mayberry, 48 Me. 219; State v. Murray, 15 Me. 100; People v. Mather, 4 Wend. (N. Y.) 229, 265, 21 Am. Dec. 122; People v. Richards, 1 Mich. 216; State v. Setter, 57 Conn. 461; Com.

The doctrine of merger of offenses seems to have been repudiated in England.49 It has also been repudiated in some of our states, and in others the courts have shown a strong

v. Blackburn, 1 Duv. (Ky.) 4; Orr v. People, 63 Ill. App. 305; Berkowitz v. U. S., 93 Fed. 452.

If, in the particular jurisdiction, petit larceny is a misdemeanor only, and not a felony, as at law, a conspiracy to commit petit

common

larceny does not merge in the larceny.

Setter, supra.

State v.

In a Massachusetts case (Com. v. Kingsbury, 5 Mass. 106), Chief Justice Parsons said that a conspiracy to commit a misdemeanor merges in the misdemeanor, but this was mere obiter dictum, and is not sustained by the authorities. See People v. McKane, 7 Misc. Rep. 478, 28 N. Y. Supp. 397.

49 In Reg. v. Button, 11 Q. B. 929, the defendants were charged with conspiracy to commit a felony, and the evidence tended to show that the felony was in fact committed. Lord Denman sustained the prosecution for the conspiracy. "A misdemeanor," he said, "which is a part of a felony, may be prosecuted as a misdemeanor, though the felony has been completed." again, in Reg. v. Neale, 1 Den. C. C. 37, a conviction for carnal knowledge of a young girl, which was a mere misdemeanor, was sustained, though the evidence showed a rape.

And

tendency to reject it.50 In some states it has been abolished by statute.51

50 See State v. Setter, 57 Conn. 461, 14 Am. St. Rep. 121; State v. Vadnais, 21 Minn. 382; Mitchell v. State, 42 Ohio St. 383.

51 In Michigan, and some of the other states, there is a statute expressly providing that if, upon the trial of any person for a misdemeanor, the facts given in evidence amount in law to a felony, he shall not, by reason thereof, be entitled to an acquittal of the misdemeanor. Under such a statute, a misdemeanor does not merge in a felony. People v. Arnold, 46 Mich. 268.

In Massachusetts, and some of the other states, it is provided that whenever a person indicted for a felony shall be acquitted of part of the offense charged, and convicted of the residue, he shall be adjudged guilty of the offense, if any, which shall be substantially charged by the residue of such indictment, and shall be sentenced and punished accordingly. Under this statute, misdemeanors do not merge in felonies. Thus, one may be convicted of conspiracy to commit a felony, notwithstanding actual commission of the felony. Com. v. Walker, 108 Mass. 309. And there may be a conviction of assault and battery on an indictment for rape. Com. v. Drum, 19 Pick. (Mass.) 479; Com. v. Dean, 109 Mass. 349. See, also, Glover v. Com., 86 Va. 382, Beale's Cas. 133.