and agrees to deliver a certain quantity of liquor, and fraudulently delivers a less quantity as and for the quantity agreed upon, using no false measures.41 The same is true of fraudulent breach of trust and confidence, as in cases of embezzlement. This is not a crime at common law.42 Fraud in an election of public officers directly affects the public at large, and is a misdemeanor at common law.43 17. Trespasses in General. If a trespass does not injure or threaten to injure the public to such an extent that public policy requires the state to interfere, it is a mere private wrong, and not a crime. For this reason it has been held that it is not a crime to break the windows of a house, though it be done willfully and maliciously, if it be not done at night, nor in a secret manner, nor in such a way as to disturb the public peace. The same is true of a bare trespass upon land or goods, not accompanied by actual force or threatened violence, so as to amount to a breach of the peace, 45 44 41 Rex v. Wheatly, 2 Burrow, 1125, 1 W. Bl. 273, Beale's Cas. 97; Com. v. Warren, 6 Mass. 74; People v. Garnett, 35 Cal. 470, 95 Am. Dec. 125; People v. Miller, 14 Johns. (N. Y.) 371; People v. Babcock, 7 Johns. (N. Y.) 201; Middleton v. State, Dudley (S. C.) 275, Mikell's Cas. 57; post, § 351. In a case involving the facts last mentioned in the text, Lord Mansfield said: "That the fact here charged should not be considered as an indictable offense, but left to a civil remedy by an action, is reasonable and right, in the nature of the thing, because it is only an incon. venience and injury to a private person, arising from that private person's own negligence and carelessness is not measuring the liquor, upon receiving it, to see whether it held out the just measure or not. The offense that is indictable must be such a one as affects the public." Rex v. Wheatly, supra. See post, § 351. 42 Post, § 341 et seq. 43 Com. v. McHale, 97 Pa. 397, 39 Am. Rep. 808, Mikell's Cas. 27; post, § 444. 44 Kilpatrick v. People, 5 Denio (N. Y.) 277; post, § 418. 45 Rex v. Storr, 3 Burrow, 1698; Rex v. Blake, 3 Burrow, 1731; Com. v. Edwards, 1 Ashm. (Pa.) 46; post, § 418. It is otherwise, however, when a trespass is committed under such circumstances as to threaten or injure the whole community. Murder, manslaughter, rape, robbery, burglary, and arson are all trespasses against the person or property, and they are all felonies at common law.46 It is clear that, if such acts are not punished by the state, the security of the whole community is affected; and so it is of many less grievous trespasses. Any trespass that constitutes a breach of the public peace and order, or that threatens a breach of the public peace and order, is a crime at common law. Thus it is a misdemeanor at common law to commit a trespass on real property, if it is committed under such circumstances as to constitute or cause a breach of the peace. And it has been held a misdemeanor, and not merely a private wrong, to destroy another's property maliciously, and in a secret manner,48 or to maliciously and wantonly kill or maim a domestic animal,49 for these acts have a direct tendency to provoke violent retaliation, and therefore to cause breaches of the peace.50 47 18. Nuisances in General. A nuisance The same distinction exists as to nuisances. which affects the health or comfort of a particular individual only, or of a few individuals, is a mere private nuisance, to be redressed or abated by a civil action;51 but if it affects the health or comfort of the entire neighborhood, or the passers-by on a public highway, it is a common or public nuisance, and a crime.52 Thus, it is a misdemeanor at common law to sell un 46 See these specific crimes, post §§ 197 et seq., 303 et seq., 400 et seq. 47 Com. v. Taylor, 5 Binn. (Pa.) 277, Mikell's Cas. 44; Rex v. Hood, Sayer, 161; post, § 418. 48 Loomis v. Edgerton, 19 Wend. (N. Y.) 419; post, § 418. 49 Respublica v. Teischer, 1 Dall. (Pa.) 335; People v. Smith, 5 Cow. (N. Y.) 258; State v. Briggs, 1 Aik. (Vt.) 226; Com. v. Cramer, 2 Pears. (Pa.) 441, Mikell's Cas. 47; post, § 388. 50 As to breaches of the peace, see post, § 417 et seq. wholesome provisions,53 or to obstruct a public street or highway by collecting a crowd, or otherwise. Many other illustrations of the distinction will be found in a subsequent chapter.55 19. Particular Crimes and Their Classification-In General. The particular crimes prohibited and punished at common law, as well as the more important statutory crimes, will be treated and explained in subsequent chapters. It is proposed to show here only in a general way what crimes were punished by the common law. Following in a general way, though with some change, Blackstone's arrangement, common-law crimes, including both felonies and misdemeanors, may be classified as follows: 1. Offenses especially affecting individuals, among which are included (1) offenses against the persons of individuals, (2) offenses against their property, and (3) offenses against their habitations. 2. Offenses especially affecting the commonwealth, among which are included (1) offenses against public justice, (2) offenses against the public peace, (3) offenses against the public trade, (4) offenses against the public health and comfort, and (5) offenses against the public morals and sense of decency. 3. Offenses especially affecting the king, or the state, and the government, the most important of which is treason. 4. Offenses more immediately offending God and religion, among which Blackstone included (1) apostacy, (2) heresy, (3) offenses against the established church, (4) blasphemy, (5) profane swearing and cursing, (6) witchcraft, (7) religious impostures, (8) simony, (9) Sabbath breaking, (10) drunkenness, and (11) lewdness. 5. Offenses against the law of nations, among which are (1) 53 State v. Lafferty, Tappan (Ohio) 113. 4 Barker v. Com., 19 Pa. 412. 55 Post, §§ 445-456. violation of safe conducts, (2) infringement of the rights of ambassadors, and (3) piracy. 20. Offenses against the Persons of Individuals. The following offenses, called offenses against the person, be cause they especially affect the persons of particular individuals, are either felonies or misdemeanors at common law: 1. Murder, or the killing of a human being with malice aforethought,56 is a felony. 2. Manslaughter, or the killing of a human being without malice aforethought, but without justification or excuse,57 is also a felony. 3. Mayhem, or the depriving another of the use of such of his members as may render him the less able, in fighting, either to defend himself, or to annoy his adversary,58 is either a felony or a misdemeanor. As to which, there is some doubt. 4. Abortion, or unlawfully causing the premature delivery of a child after it has quickened, so that it is born dead,59 is a misdemeanor. 5. Rape, or unlawful carnal knowledge of a woman by force, and against her will,60 is a felony. 6. Sodomy, or buggery, the crime against nature,61 is also a felony. 7. Assault and battery.—An assault is a mere offer or attempt to inflict corporal injury upon another, accompanied by circumstances which indicate an intent, coupled with apparent present ability, to do actual violence. If injury is actually inflicted, there is a battery,-both assault and battery.62 Assault with intent to kill, or to rape, or to rob, etc., are called ag 56 4 Bl. Comm. 195; post, § 238 et seq. ST 4 Bl. Comm. 191; post, § 255 et seq. 58 4 Bl. Comm. 205; post, § 221 et seq. 59 Post, § 289 et seq. 80 4 Bl. Comm. 210; post, § 293 et seq. €14 Bl. Comm. 215; post, § 461. 62 See 4 Bl. Comm. 216; post, § 197. C. & M. Crimes-3. gravated assaults, and are punished more severely than simple assault.63 Assaults and assault and battery are misdemeanors at common law. 8. False imprisonment, or unlawfully depriving another of his personal liberty, is a common-law misdemeanor. 64 9. Kidnapping, or the forcible abduction or stealing away of a man, woman, or child from their own country, and sending them into another,65 is a misdemeanor. The above are the offenses against the persons of individuals which were known to the common law. They are still offenses, except in so far as the common law has been abrogated or superseded by statute. There are other offenses against the person which have been created by statute, both in England and in this country, and to which attention will be called in another chapter. 21. Offenses against the Property of Individuals. The following offenses against the property of individuals are punished by the common law. Some are felonies, while others are merely misdemeanors. They are classed as offenses against property, because they immediately affect the property of particular individuals. 1. Larceny. This offense may be defined generally as the taking and carrying away of the mere personal goods of another, animo furandi, or with intent to steal.66 It was a felony at common law, and is still punished as a felony in all jurisdictions. 2. Cheats. It is a misdemeanor at common law, known as "cheating," for a person to fraudulently obtain the property of another by a deceitful practice, not amounting to a felony (larceny), which directly affects, or may affect, the public at large. 63 Post, § 207. 64 4 Bl. Comm. 218; post, § 224. 65 4 Bl. Comm. 219; post, § 228. 66 4 Bl. Comm. 229; post, § 303 et seq. |