fection with gangrene by reason of maltreatment, it was held that the defendant was liable for manslaughter, though the wound would not have been fatal if it had been properly treated; and the court said, in speaking of the rule above stated: "A different rule would tend to give immunity to crime, and to take away from human life a salutary safeguard. Amid the conflicting theories of medical men, and the uncertainties attendant on the treatment of bodily ailments and diseases it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest crimes might escape conviction and punishment" (12). One was held liable for murder on proof that he shot his brother-in-law, and the injury caused a temporary insanity which induced the brother-in-law to commit suicide (13). Rioters were held not liable for murder of one of their number who was shot by the police in an attempt to restore order; for the act was not done by one acting in concert with the rioters, but by their opponents (14). But when train robbers seized the engineer and held him as a body-guard between them and the messenger in the express car, to protect them in their effort to rob the express car, they were held liable for murder when the engineer was killed by a shot fired by the messenger in the express car in an attempt to drive off the robbers. This case was distinguished from the case above on the (12) Commonwealth v. Hackett, 2 Allen 136. (13) People v. Lewis, 124 Cal. 551. (14) Commonwealth v. Campbell, 7 Allen 541. ground that the defendants wilfully exposed the deceased to a place of danger for the purpose of enabling them to accomplish their crime (15). If a person is doing a lawful act he is not liable for a wrongful act of another provoked by his lawful act, though he knew that his act might provoke the other. The members of a salvation army were held not liable for a breach of the peace resulting from their marching down the street, though they had been informed that their attempt to march would be opposed and might result in a breach of the peace (16). § 18. What wrongs are public sufficiently to be criminal. There is such a variety of wrongs and gradual shading off of injurious consequences to the public from wrongs done, that it is difficult if not impossible to lay down any positive rule as to what wrongs are sufficiently gross to merit the attention of the state and deserve criminal punishment, and what should be left to be redressed by a private action of the person injured against the wrongdoer. As cases along the border line, may be mentioned petty malicious acts, frauds, nuisances, and immoral conduct. As to frauds, the old doctrine was that a man could be punished criminally for all cheats against which common prudence could not guard, such as using false weights and measures; but not for obtaining credit by lies, and the like; but this rule has been changed by statute, because experience has shown that the simpleminded are the easiest dupes of the rogue, and most in need of protection. As to nuisances, the law is and al (15) Taylor v. State, 41 Tex. Crim. App. 564. ways has been, that they are not criminal if they affect only certain individuals rather than the public. As to immoral conduct the courts were formerly much more lax than they are now. Publishing indecent and obscene language was once held not to be criminal; but the courts discovered the error and held later that publishing obscene books or pictures were common law misdemeanors like indecent exposure of the person in public; and these cases have also been regulated by statute. Malicious destruction of property, unaccompanied by any breach of the peace or occasion for fear, such as breaking the windows of a vacant house without making any disturbance, were not criminal in the absence of statute upon the subject. But if the act done manifested cruelty, such as torturing a domestic animal to death through spite, or was done in such a threatening way as to cause alarm to persons in the community generally, the act was criminal though it principally affected only one family or person. § 19. Criminal prosecution distinguished from police administration. A man may be guilty of a wrongful act, warranting the interference by public officials, without being guilty of any crime, and statutes are frequently enacted concerning such cases. The act of Congress of May 5, 1892, provided that Chinese persons coming into the United States should be imprisoned at hard labor for a period not exceeding a year and thereafter removed according to the provisions of the act. This was held not to be a criminal statute and not to contemplate a criminal prosecution, nor any complaint in court, in so far as the act contemplated that the officers should seize any person found violating the act, and imprison him so that he could not get away till he could be safely deported. But in so far as he was to be confined at hard labor this was criminal punishment and must be preceded by conviction of crime after a jury trial (17). § 20. How defenses may differ from those to actions for private wrongs. A criminal prosecution is for the purpose of punishing the accused, in order that he may be restrained from repetition of the act by fear of further punishment; that he may be an example to others who may be tempted to do wrong; and that he may be confined or disposed of to protect the public from him. The criminal prosecution is for the purpose of punishing, the private action is to obtain redress and satisfaction. The criminal prosecution is for the wrong done to the public, the private action is for the wrong done to the individual. The same act may be both a private wrong and a crime, for which the injured person is entitled to a private action for redress and the guilty party is liable to a criminal prosecution in the name of the state. For example, if a man steals my horse, I have a civil action against him to recover the horse or its value, and the state can maintain a criminal prosecution against him to punish him for the crime, which is the wrong done to the state by the same act. From these facts it naturally results that no forgiveness by me of his wrong will excuse him when prosecuted criminally; no compensation he can make me for the injury done will excuse him when prosecuted crim (17) Wong Wing v. U. S., 163 U. S. 228. inally; no judgment rendered either for or against him in my action for compensation will be a defense when he is prosecuted criminally for the same act; nothing of which I may have been guilty in the same transaction will excuse him for his crime; no negligence of which I have been guilty will excuse his negligence when prosecuted criminally; and no consent by me to the act he did, before it was done, will excuse him from criminal prosecution, unless the gist of the crime consisted in the fact that it was done without my consent, as in cases of larceny, rape, etc. § 21. Negligence of victim. Where the injury has resulted from the negligence of the accused, the defense has often been made that the person injured was equally negligent. In a civil action for redress by the person injured it would be a good defense to prove that if he had not been negligent himself he would not have been injured; but as the criminal prosecution is by the state for the injury to the state; and the state is not responsible for the negligence of either party, it is held that contributory negligence is no defense. One was held liable for manslaughter in recklessly running over a man in a dark street, though the deceased was deaf and walking in the middle of the road (18). § 22. Guilt of the victim. Occasionally judges have forgotten that the criminal prosecution is to punish the offender, not to redress the victim; and, therefore, have held that the guilt of the victim is a defense. But these (18) Queen v. Longbottom, 3 Cox. Crim. Cases 439. |