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But it is not cheating at common law to deceive any person in any contract or private dealing by lies, unaccompanied by such practices.67

3. Malicious mischief.—At common law, it is a misdemeanor, known as "malicious mischief," to willfully and maliciously destroy or injure the property of another, under certain circumstances. This offense is now covered by various statutes in England and in this country. It is included here, as by Blackstone, among offenses against property. At common law, however, it was punished, not merely because of the injury to the property, but because of the tendency to provoke violent retaliation, and cause a breach of the public peace, and was therefore more properly an offense against the public peace.68

4. Robbery is a felony at common law. It is a compound larceny,—the taking of the property of another from his person, animo furandi, by violence, or by putting him in fear.69

5. Receiving stolen goods with knowledge that they have been stolen, and with intent to defraud, is a misdemeanor at common law,70

6. Forgery is a misdemeanor at common law. It is the false making, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation. of a legal liability.71

As we shall see in a subsequent chapter, statutes have been enacted in all jurisdictions creating many new offenses against property.

22. Offenses against the Habitations of Individuals.

The only common-law offenses which more immediately af

67 Steph. Dig. Crim. Law, art. 338; post, §§ 350-369. Cheating was classed by Blackstone as an offense against public trade.

68 See 4 Bl. Comm. 243; post, § 388.

69 4 Bl. Comm. 241; post, § 370.

70 4 Bl. Comm. 132; post, § 380. This is included by Blackstone among offenses against public justice.

71 Post, § 392; 4 Bl. Comm. 247.

fect the habitations of individuals, and which are therefore classed as offenses against the habitation, rather than as offenses against property, are burglary and arson. These are both felonies at common law.

1. Burglary is the breaking and entering of the dwelling house of another in the nighttime, with intent to commit a felony.72

2. Arson is the willful and malicious burning of the dwelling house of another.73

These offenses, as we shall see when we come to treat of them, have been very much enlarged by statute in all jurisdictions. 23. Offenses Especially Affecting the Commonwealth and the Government-In General.

In one sense, all offenses affect the commonwealth or government. It is only upon this theory that any act is punished by the state. There are some offenses, however, which especially affect the commonwealth, that is, the whole community,rather than any one individual, as (1) offenses affecting the administration of public justice, (2) offenses affecting the public peace, (3) offenses affecting the public trade, (4) offenses affecting the public health and comfort, (5) offenses affecting the public morals or sense of decency, and (6) offenses directly affecting the administration of government.74

24. Offenses Affecting the Administration of Justice.

The public is clearly injured by acts corrupting or obstructing the administration of public justice, and therefore the common law punishes as a misdemeanor any willful and corrupt act having this effect or tendency. For this reason, it punishes the compounding of felonies, or agreements not to prosecute therefor, bribery of judicial officers, bribery of jurors,

72 4 Bl. Comm. 223; post, § 400.

73 4 Bl. Comm. 221; post, § 410.

74 See 4 Bl. Comm. 127 et seq.; Steph. Dig. Crim. Law, 36 et seq.

or otherwise tampering with them, champerty and maintenance, perjury, obstruction of officers in the service of process, escape, prison breach, rescue, etc.75

25. Offenses Affecting the Public Peace.

For

At common law, any act which in itself amounts to a disturbance of the public peace, or which has a direct tendency to cause a breach of the public peace, is a misdemeanor.76 this reason, among others, the common law punishes unlawful assemblies, routs, riots, affrays, disturbance of public assemblies, prize fighting, etc. ;" and because of the tendency to cause breaches of the peace, it punishes various acts of malicious mischief,78 libel,79 certain kinds of disorderly houses,80 etc. The principle is not limited to these specific offenses, but covers any other case in which the public peace is disturbed.81

77

75 4 Bl. Comm. 127 et seq.; Reg. v. Burgess, 16 Q. B. Div. 141; Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786; State v. McNally, 34 Me. 210, 56 Am. Dec. 650; State v. De Witt, 2 Hill (S. C.) 282, 27 Am. Dec. 371; State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450; State v. Doud, 7 Conn. 385, Mikell's Cas. 32; post, §§ 430-444.

764 Bl. Comm. 142 et seq.; Henderson v. Com., 8 Grat. (Va.) 708, 56 Am. Dec. 160; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; State v. Jasper, 4 Dev. (N. C.) 323; State v. Huntly, 3 Ired. (N. C.) 418, 40 Am. Dec. 416. Writing a scandalous letter concerning a young lady to one whom she was about to marry. Rex v. Summers, 3 Salk, 194, Mikell's Cas. 41.

17 Com. v. Hoxey, 16 Mass. 385; State v. Perry, 5 Jones (N. C.) 9, 69 Am. Dec. 768; Com. v. Haines, 4 Clark (Pa.) 17, Mikell's Cas. 41. And see these specific crimes, post, §§ 417-429.

78 Respublica v. Teischer, 1 Dall. (Pa.) 335; People v. Smith, 5 Cow. (N. Y.) 258; State v. Briggs, 1 Aik. (Vt.) 226; post, § 388.

7 Com. v. Chapman, 13 Metc. (Mass.) 68; Rex v. Summers, 3 Salk. 194, Mikell's Cas. 41; post, § 428.

So State v. Buckley, 5 Harr. (Del.) 508; State v. Bertheol, 6 Blackf. (Ind.) 474, 39 Am. Dec. 442; post, § 427.

81 Thus it has been held a misdemeanor at common law to agree to fight. State v. Hitchens, 2 Harr. (Del.) 527. Or to exhibit an effigy calculated to provoke anger and resentment among the populace. Com. v. Haines, 4 Clark (Pa.) 17, Mikell's Cas. 41. For other illustrations,

26. Offenses Affecting the Public Trade.

Among the common-law offenses affecting the public trade, the first mentioned by Blackstone is owling, 82 or the transporting of wool or sheep out of the kingdom, to the detriment of its staple manufacture.83 Smuggling, or the importing of goods without paying the duties imposed by law, was punished by various early English statutes.84 Fraudulent bankruptcy and usury were punished by early English statutes, and are classed by Blackstone as offenses affecting the public trade. 85 In this country they are punished by statute in some jurisdictions. Cheating was also classed as an offense against public trade.86 Forestalling the market, regrating, engrossing, monopolies, exercising a trade without having served an apprenticeship, were all offenses against the public trade, either at common law, or by virtue of early English statutes.8

87

27. Offenses Affecting the Public Health and Comfort.

Any act injuriously affecting or endangering the health or comfort of the community at large was and still is a common nuisance, and a misdemeanor at common law. Thus, it is a misdemeanor to expose a person having a contagious disease in such a way that other members of the community may be

see State v. Huntly, 3 Ired. (N. C.) 418; U. S. v. Hart, Pet. C. C. 390, Fed. Cas. No. 15,316, and the cases cited post, §§ 417-429.

82 So called because it was usually carried on at night. 4 Bl. Comm. 154.

83 4 Bl. Comm. 154. It was also punished particularly by the statute of 2 Edw. III. c. 1; but it has been since abolished.

84 4 Bl. Comm. 154, 155.

85 4 Bl. Comm. 156.

86 Respublica v. Powell, 1 Dall. (Pa.) 47, Mikell's Cas. 56.

§ 21; post, § 350.

87 4 Bl. Comm. 158; post, §§ 474-481.

See ante,

88 4 Bl. Comm. 161 et seq.; Anon., 12 Mod. 342, Beale's Cas. 843; Rex v. Burnett, 4 Maule & S. 272, Beale's Cas. 104; Rex v. Vantandillo, 4 Maule & S. 73, Mikell's Cas. 53; Rex v. Taylor, 2 Strange, 1167, Mikell's Cas. 52; Com. v. Cassidy, 6 Phila. (Pa.) 82, Mikell's Cas. 54; Rex v. Dixon, 3 Maule & S. 11; post, § 445 et seq.

infected, to sell unwholesome provisions, to improperly excite public alarm, to conduct a dangerous or noxious business in such a way, or at such a place, as to endanger the life or health of the other members of the community, or, subject to limitations, so as to interfere with the comfort of the other members of the community.88

28. Offenses Affecting the Public Morals or Sense of Decency. "Immorality" and "crime" are by no means convertible terms. The law does not undertake to punish a man merely because he is immoral. There must be something more. There must be injury to the community at large. A man may be grossly immoral in his private life, without being responsible to the criminal law, unless his conduct is covered by some statute.89 Public immorality, however, because of the tendency to corrupt the public morals, and shock the public sense of decency, is a public nuisance, and a misdemeanor at common law. It may therefore be laid down as a general principle, that, at common law, any act that has a direct tendency to corrupt the morals of the community, or shock its sense of decency, is a misdemeanor. For this reason, the common law punishes the keeping of a common bawdy house, or house that is a common resort for the purpose of prostitution, a common gaming house, indecent exposure of the person in a public place, obscene publications and exhibitions, open and notorious lewdness, etc.90

90

89 Anderson v. Com., 5 Rand (Va.) 627, 16 Am. Dec. 776, Mikell's Cas. 64, where it was held in effect that fornication, adultery, and seduction are not common-law crimes.

90 Rex v. Delaval, 3 Burrow, 1434, Beale's Cas. 101; Rex v. Curl, 2 Strange, 788; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632 Beale's Cas. 113; Kanavan's Case, 1 Me. 226, Beale's Cas. 115; Bell v. State, 1 Swan (Tenn.) 42, Mikell's Cas. 59; Britain v. State, 3 Humph. (Tenn.) 203; State v. Appling, 25 Mo. 315, 69 Am. Dec. 469; Barker v. Com., 19 Pa. 412. And see post, § 458 et seq.

In Barker v. Com., supra, it was held that foul language charged to have been uttered in the public streets with intent "to debauch, debase,

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