and rape or larceny, robbery, and the included larceny, rape and murder, arson and murder, etc. 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 Neither is there a merger when the misdemeanor and felony are distinct and the one not a necessary constituent of the other.48a

47 People v. Bristol, 23 Mich. 118; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; State v. Mayberry, 48 Me. 218, 238; Graff v. People, 208 Ill. 312, 70 N. E. 299; People v. Smith, 57 Barb. (N. Y.) 46.

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, Mikell's Cas. 385; People v. Richards, 1 Mich. 216; State v. Setter, 57 Conn. 461, 18 Atl. 782; Com. v. Blackburn, 1 Duv. (Ky.) 4; Orr v. People, 63 Ill. App. 305; Graff v. People, 208 Ill. 312, 70 N. E. 299; U. S. v. McDonald, 3 Dill. 543, Fed. Cas. No. 15,670; U. S. v. Rindskopf, 6 Biss. 259, Fed. Cas. No. 16,165; State v. Noyes, 25 Vt. 415; Berkowitz v. U. S., 93 Fed. 452, 35 C. C. A. 379.

If, in the particular jurisdiction, petit larceny is a misuemeanor only, and not a felony, as at common law, a conspiracy to commit petit larceny does not merge in the larceny. State v. Setter, supra.

In a Massachusetts case (Com. v. Kingsbury, 5 Mass. Iv), 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. 478, 28 N. Y. Supp. 397; and Graff v. People, supra.

The misdemeanor merges in the felony only when both are committed in the same state. Regent v. People, 96 Ill. App. 189. Compare Noyes v. State, 41 N. J. Law (12 Vroom) 418; Thompson v. State, 106 Ala. 67, 17 So. 512.

48a People v. Rathbun, 44 Misc. 88, 89 N. Y. Supp. 746; People v. Petersen, 60 App. Div. 118, 69 N. Y. Supp. 941; Johnson v. State, 26 N. J. Law (2 Dutch.) 313; State v. Pomeroy, 30 Or. 16, 46 Pac. 797; State V. Noyes, 25 Vt. 415.

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 tendency to reject it.50 In some states it has been abolished by statute.5

51

The less is merged in the greater offense only when they result from the same act or continuing transaction. State v. Coppenburg, 2 Strob. (S. C.) 273. As where one unlawfully carries a dangerous weapon and commits a murderous assault with it. The carrying is not merged in the assault. State v. Livesay, 30 Mo. App. 633.

Contempt of court is not merged in subornation of perjury. Ricketts v. State (Tenn.) 77 S. W. 1076.

49 In Reg. v. Button, 3 Cox, C. C. 229, 11 Q. B. (Adol. & E. N. S.) 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." And 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.

50 See State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121; State v. Shepard, 7 Conn. 54; State v. Vadnais, 21 Minn. 382; Mitchell v. State, 42 Ohio St. 383; Hunter v. Com., 79 Pa. 503.

Where an indictment for conspiracy also charges an overt act, but defendant is placed on trial only for the conspiracy, there is no merger. State v. Grant, 86 Iowa, 216, 53 N. W. 120; Graff v. People, 208 Ill. 312, 70 N. E. 299; U. S. v. Rindskopf, 6 Biss. 259, Fed. Cas. No. 16,165.

Where the offense consists of a series of acts, and a part of them con. stitute a complete misdemeanor, there is no merger. Elkin v. People, 24 How. Pr. (N. Y.) 272.

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, 9 N. W. 406.

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 ac cordingly. Under this statute, misdemeanors do not merge in felonies. Herman v. People, 131 Ill. 594, 22 N. E. 471; Hill v. State, 53 Ga. 125;

State v. Dowd, 19 Conn. 388; Com. v. Goodhue, 2 Metc. (43 Mass.) 193; Glover v. Com., 86 Va. 382, 10 S. E. 420. 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; State v. Kyne, 86 Iowa, 616, 53 N. W. 420; People v. Abbott, 97 Mich. 484, 56 N. W. 862; Com. v. Cooper, 15 Mass. 187; State v. Johnson, 30 N. J. Law (1 Vroom) 185. See, also, Glover v. Com., 86 Va. 382, 10 S. E. 420, Beale's Cas. 133.

An indictment for a constituent offense is supported by proof of the including offense. Com. v. Creadon, 162 Mass. 466, 38 N. E. 1119; Com. v. Burke, 14 Gray (80 Mass.) 100; State v. Kneeland, 90 Mo. 337, 2 S. W. 442; State v. Vadnais, 21 Minn. 382; Com. v. McPike, 3 Cush. (57 Mass.) 181.

C. & M. Crimes-2.

I.

CHAPTER II.

SOURCES OF THE CRIMINAL LAW.

NECESSITY FOR PROHIBITION BY LAW, §§ 7-9.

II. THE COMMON LAW, §§ 10-31.

III.
IV.

THE STATUTE LAW, §§ 32-48.

EXPIRATION AND REPEAL OF LAWS, §§ 49-53.

I. NECESSITY FOR PROHIBITION BY LAW.

7. In General.—To be a crime, an act must be prohibited and made punishable by law, and it must be so, both at the time it is committed, and at the time it is punished.1 This prohibition is either by (a) the common or unwritten law, or (b) by statute.

8. Abolition of the Common Law.

As we shall presently see at some length, many acts are prohibited and punished by the common or unwritten law, which is that portion of the municipal law which does not rest for its authority upon any express legislative enactment, but upon usage or custom.2 Or it may be punished by the statute law, or express legislative enactments.3 Unless prohibition can be found in one or the other, no act whatever, however atrocious, is a crime.4

Murder, rape, and robbery are most grievous crimes by the common law, and were punished by death, but they would not

1 Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377, Beale's Cas. 5.

2 Post, 10 et seq.

3 Post, § 32 et seq.

4 Com. v. Marshall, supra; Rust v. State, 4 Ind. 528; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355; Com. v. Grover, 16 Gray (Mass.) 602; Ware v. Branch Circ. Judge, 75 Mich. 488, 42 N. W. 997.

be crimes at all if the legislature should abolish the common law, as has been done in several states, and inadvertently fail to enact a statute covering such acts, or enact a statute unconstitutionally. In Ohio, the common law was abolished, in so far as it determines what acts are crimes, and the legislature undertook to cover the whole field by statute. It neglected, however, to provide for the punishment of a man who should have carnal knowledge of a girl under 10 years of age with her consent, and when such an act was committed in that state some years ago, the court had to hold that it was not a crime, and could not be punished.

9. Repeal of Law after Commission of Act.

As will be shown in a subsequent section, an act committed while a law is in force prohibiting and punishing it cannot be made the subject of a criminal prosecution after the law has been repealed without a saving clause as to acts previously committed. The law must be in force when proceedings are taken to punish for the act, as well as when the act is committed."

II. THE COMMON LAW.

10. Definition.-By the "common law" is meant that portion of the municipal law which does not rest for its authority upon any express act of the legislature, but is founded upon usage and custom. It is called the unwritten law, in contradistinction to the written or statute law. 8

5 Post, § 14.

Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355. And see Mitchell v. State, 42 Ohio St. 383; Estes v. Carter, 10 Iowa, 400. See, also, post, § 14.

7 Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377, Beale's Cas. 5; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; post, § 52.

82 Cent. Dict. & Cyc. p. 1133; 2 Johns. Univ. Cyc. 427. "By the common law is meant those maxims, principles, and forms of judicial proceeding which have no written law to prescribe or warrant them, but which, founded on the laws of nature and the dictates of reason, have, by usage and custom, become interwoven with the written laws, and,