death, or by confinement in the state prison, are felonies.35

In a few states the confinement must be at hard labor. Some of the statutes apply only to the term "felony," when used in a statute.36

Under such a statute, it is the possible punishment-the punishment that may be imposed-that determines whether an offense is a felony, and not the punishment that is actually imposed in a particular case.37

35 See People v. Lyon, 99 N. Y. 210, 1 N. E. 673; Cook v. State, 60 Ala. 39, 31 Am. Rep. 31; Randall v. Com., 24 Grat. (Va.) 644; State v. Mallett, 125 N. C. 718, 34 S. E. 651; State v. Smith, 32 Me. 369, 33 Me. 48; State v. Smith, 8 Blackf. (Ind.) 489.

Under such a statute, an offense not punishable by death or by imprisonment in the state prison is not a felony, though it may have been a felony at common law. Shay v. People, 22 N. Y. 317; Nathan v. State, 8 Mo. 631.

A statute which merely changes the punishment for offenses that were felonies at common law from death to imprisonment in the state prison does not have the effect of reducing the grade of such offenses from felony to misdemeanor. The grade remains the same as at common law. State v. Dewer, 65 N. C. 572.

36 Thus, a statute declaring that the term "felony," when "used in any statute," shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison, does not make an offense a felony which was only a misdemeanor at common law, though it may be punished by imprisonment in the state prison, but it merely furnishes a definition of the term "felony," when it is used in some statute. Wilson v. State, 1 Wis. 184; Nichols v. State, 35 Wis. 308.

In Michigan the statute declares that "the term 'felony,' when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in the state prison." It is held that this is only a legislative definition of the term, as used in those provisions of the statute where neither the particular offense, nor its grade, is otherwise indicated than by the use of this term; and that those acts which were felonies at common law remain such, notwithstanding the statute, though by statute they may be subjected to a less punishment than that mentioned. Drennan v. People, 10 Mich. 169.

37 People v. Lyon, 99 N. Y. 210, 1 N. E. 673; People v. Hughes, 137 N. Y. 29, 32 N. E. 1105; People v. War, 20 Cal. 117; Johnston v. State, 7 Mo. 183; Ingram v. State, 7 Mo. 293; State v. Melton, 117 Mo. 618, 23

. No offense against the United States-that is, no violation of the federal laws-is a felony, unless it is expressly declared to be so by an act of congress.38

Misdemeanors.-All crimes that are not treason or felony are

misdemeanors.

4. Infamous Crimes.

The term "infamous" was applied at common law to crimes disqualifying convicts as witnesses. They included treason and felonies, and also forgery and other misdemeanors affecting, by falsehood and fraud, the administration of justice, such as perjury, conspiracy to falsely accuse one of crime, etc., but did not include cases of cheating, assault and battery, and other mere breaches of the peace, etc.39 It was the nature of the offense, and not the punishment, that rendered it infamous.39a

S. W. 889; State v. Smith, 32 Me. 369, 33 Me. 48; State v. Waller, 43 Ark. 381; State v. Mayberry, 48 Me. 218; Rafferty v. State, 91 Tenn. 655, 16 S. W. 728; Benton v. Com., 89 Va. 570, 16 S. E. 725; State v. Harr, 38 W. Va. 58, 17 S. E. 794. And see People v. Brigham, 2 Mich. 550; Firestone v. Rice, 71 Mich. 377, 381, 38 N. W. 885; State v. Rouch, 47 Ohio St. 478, 481, 25 N. E. 59.

"The maximum punishment to which he is liable to be subjected is the test by which the degree of the crime must be determined." People v. Lyon, supra.

This statutory definition of felony must be construed as relating to the punishment prescribed for the crime, without regard to any per sonal exemption of the criminal. Therefore one who is convicted and sentenced for an offense punishable by imprisonment in the state prison is convicted and sentenced for a felony, though by statute, because of his youth, he is sent, not to state prison, but to the house of refuge. People v. Park, 41 N. Y. 21.

In Illinois the decisions are not in accord with this view. The statute in that state declares to be felonies all offenses "punishable" by death or imprisonment in the state prison, and it is held that this means that the offense "must" be so punished, and that an offense which may be punished either by imprisonment in the penitentiary or by a fine only, in the discretion of the jury, is a misdemeanor only. Lamkin v. People, 94 Ill. 501; Baits v. People, 123 Ill. 428, 16 N. E. 483. 38 In re Acker, 66 Fed. 290; U. S. v. Belvin, 46 Fed. 381.

391 Greenl. Ev. § 373; Ex parte Wilson, 114 U. S. 417; People v.

The term, however, is not always used in this sense. It is declared in the federal constitution that no person shall be held to answer for a capital or "otherwise infamous offense," unless on a presentment or indictment by a grand jury, but the term "infamous" is not defined.40 There are similar provisions in some of the state constitutions and statutes.41 Some of the lower federal courts have held that this provision only requires an indictment for such offenses as disqualified a witness at common law,42 but the supreme court has overruled them in a late case, and has decided that any offense is infamous, within the meaning of the provision, that may be punished by death or by imprisonment in a state prison, with or without hard labor.43

5. Crimes Mala in Se and Mala Prohibita.

Crimes are divided into those that are mala in se, or wrong in themselves, and those that are mala prohibita, or wrong

Sponsler, 1 Dak. 289, 46 N. W. 459; King v. State, 17 Fla. 183; Com. v. Shaver, 3 Watts & S. (Pa.) 338; Smith v. State, 129 Ala. 89, 29 So. 699, 87 Am. St. Rep. 47.

39a Smith v. State, 129 Ala. 89, 29 So. 699, 87 Am. St. Rep. 47.

40 Const. U. S. Amend. art. 5.

41 See Const. N. Y. art. 1, § 6.

42 U. S. v. Maxwell, 3 Dill. 275, Fed. Cas. No. 15,750. There are state court decisions to the same effect. People v. Sponsler, 1 Dak. 289, 46 N. W. 459.

43 Ex parte Wilson, 114 U. S. 417; Mackin v. U. S., 117 U. S. 348; U. S. v. DeWalt, 128 U. S. 393; Ex parte McClusky, 40 Fed. 71; Jamison v. Wimbish, 130 Fed. 351.

The term "infamous" has been construed in the same way by some of the state courts. Jones v. Robbins, 8 Gray (Mass.) 329, 349; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124.

The test is the possible punishment,—the punishment that may be imposed, and not the punishment actually awarded in the particular case. Ex parte Wilson, supra.

In Illinois, "infamous" crimes are enumerated in the statute, and are murder, rape, kidnapping, 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.

merely because they are prohibited and punished by statute. Crimes mala in se include all common-law offenses, for the common law punishes no act that is not wrong in itself. They include, in addition to felonies, all breaches of the public peace or order, injuries to person or property, outrages upon public decency or good morals, and willful and corrupt breaches of official duty. Acts mala prohibita include any act forbidden by statute, but not otherwise wrong. This distinction has been criticised, but it is clear, and is often of the utmost importance.1

45

6. The Merger of Offenses.

44

The same act often involves several offenses, felonies, or misdemeanors, or both. Thus, every murder or rape, and every robbery by actual violence, includes an assault 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 offenses, at the election of the state, or whether one of

44 Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, Beale's Cas. 204, Mikell's Cas. 160.

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 because prohibited by the statute or ordinance. Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, Beale's Cas. 204, Mikell's Cas. 160.

them merges and extinguishes the others, so that it alone can be prosecuted. This is what is meant by the merger of of

fenses.

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 was no merger of a felony in a felony, as in the case of burglary

46 Graff v. People, 208 Ill. 312, 70 N. E. 299; Harmwood's Case, 1 East, P. C. 411; 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, 7 Misc. 478, 28 N. Y. Supp. 397; People v. Thorn, 21 Misc. 130, 47 N. Y. Supp. 46; 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; Elsey v. State, 47 Ark. 572, 2 S. W. 337; State v. Hattabough, 68 Ind. 223; Wright v. State, 5 Ind. 527; People v. Wicks, 11 App. Div. 539, 42 N. Y. Supp. 630; U. S. v. Gardner, 42 Fed. 829.

The common law rule was founded on the difference as to procedure between felony and misdemeanor cases, misdemeanants being allowed many privileges in making their defense, such as full privilege of counsel, a copy of the indictment and a special jury, not accorded to felons. Rex v. Westbeer, 1 Leach, C. C. 12, 2 Strange, 1133. It was considered therefore that no conviction of a constituent misdemeanor could be had on indictment for felony, because of the denial of privileges, and no conviction of misdemeanor where the evidence showed a felony, because the king had a right to the conviction of felony with its attendant forfeiture. Whence arose the rule that where a misdemeanor was a constituent part of a felony, as where an assault culminated in murder or rape, or where a conspiracy culminated in the felony which was its object, the misdemeanor was sunk or merged in the felony which alone was punishable. Another result of the rule was that a prior conviction or acquittal of misdemeanor could not be pleaded in bar of an indictment for felony, and it is frequently urged as a ground for discharge on indictment for misdemeanor that the record of conviction would be no bar to a prosecution for the felony. On the principle of cessat ratione cessat lex it would seem that the rule of merger might well be abolished as it has been practically in England and many states by statutes abrogating rules of procedure founded upon it. For a lucid explanation of the rule and its present status see Graff v. People, 208 Ill. 312, 320, 70 N. E. 299.