and cry, and a pursuit organized, to arrest one guilty of a felony, but not one guilty of a misdemeanor.

(3.) In some States felonies are "infamous;" not misde

meanors.

(4.) In some States there can be informations (as distinguished from indictments) for misdemeanors, but not for felonies.

(5.) In some States convictions for felonies disfranchise; but not convictions for misdemeanors.

(6.) Counts for felonies in some States, cannot, in obedience to the old common-law rule, be joined with counts for misdemeanors, though the cases where this absurd limitation is pressed are now rare.

It will be seen, therefore, that the distinction between felonies and misdemeanors cannot be got rid of by a single exceptional statute. The passage of such a statute would throw into hopeless chaos some of the most important branches of the law of procedure. The only course is to work the change into a systematic code.

Another important principle asserted by the commissioners is one for which I once argued at length in the pages of the SOUTHERN LAW REVIEW, namely, that proof of guilty knowledge is not necessary in cases of offences which are made by statute indictable irrespective of such knowledge; and that in such cases it is no defence that the defendant honestly believed that what he did was right, or honestly though wrongfully believed in facts which if true would have made what he did excusable. It is no defence, for instance, to an indictment for voting twice, when the statute makes voting twice indictable, that the defendant believed that he had a right to vote twice. It is no defence to an indictment for selling an intoxicating drink that the defendant believed that the drink he sold was not intoxicating. It is no defence to an indictment against a Mormon for lascivious cohabitation that he believed that the sexual relations. forming the basis of the offence were lawful marriages. It is no defence to an indictment under the act of Congress, for overloading a steamboat, that the defendant honestly be

lieved that the steamboat was not overloaded. The authorities for these positions I do not cite here, as they are cited at large in the eighth edition of my work on Criminal Law; but I do cite here the conclusions of the commissioners on the question of ignorance as a defence to bigamy, a question as to which there has been some vacillation in the English courts. On this point the commissioners thus speak:

"The existing statute as to bigamy is so worded as to have given rise to a difference of judicial opinion as to whether it does or does not, from motives of policy, make it a crime to marry again during the life of the husband or wife, though in the bonâ fide and reasonable belief that the first husband or wife was dead, unless seven years had elapsed since he or she was last heard of. We have thought it important that the law should be certain, and have accordingly framed the clause so as to leave no doubt what the law would be. In doing so we have adopted the construction which has been more generally put on the existing statute. No doubt the conviction of a man marrying again within the seven years, under the honest belief that his wife was dead, may be regarded as a hard case; but the hardship may at present be mitigated by the infliction of a nominal punishment, and will be capable of still further mitigation if sect. 13 of the Draft Code becomes law. On the other hand, care must be taken not to give encouragement to bigamous marriages by relaxing the rule that a man marrying within the prescribed seven years does so at his peril."'*

Still more important is the final sweeping away of the old common-law definition of larceny, and the enactment in its place of the Roman law of theft. Theft, in the Draft Code, is thus defined:

"Theft, or stealing, is the act of fraudulently and without color of right taking, or fraudulently and without color of right converting to the use of any person, any thing capable of being stolen, with intent to deprive the owner permanently thereof, or to deprive any person having any special property or interest therein permanently of such property or interest.

"Every one commits theft who fraudulently and without color of right takes or converts any thing capable of being stolen, with

1 Report, p. 25.

intent to pledge the same or deposit it as security, or to part with it under a condition as to its return which he may be unable to perform; or to deal otherwise with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion; or who, being in lawful possession of any such thing, fraudulently and without color of right pledges, deposits, parts with, or otherwise deals with it as aforesaid.

"The taking or conversion may be deemed fraudulent although effected without secrecy or attempt at concealment. Provided that no factor or agent shall be guilty of theft by pledging or giving a lien on any goods, or document of title to goods, intrusted to him for the purpose of sale or otherwise, for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange accepted by him for or on account of his principal.

"It is immaterial in all cases whether the thing converted was taken by the thief for the purpose of the conversion, or whether it was at the time of the conversion in the lawful possession of the thief. Provided that if any servant contrary to the orders of his master takes from his possession any food for the purpose of giving the same, or having the same given, to any horse or other animal belonging to or in the possession of his master, the servant so offending shall not by reason thereof be deemed guilty of theft.

"Theft is committed when the offender moves the thing, or causes it to move or to be moved, with intent to steal it.

"Theft is committed when the offender cuts, rips, or otherwise begins to cause to be movable any thing forming part of or growing out of or attached to any real property, with intent to steal it."

These sections are thus explained by the commissioners:

"Technicalities of more importance connected with taking are those which have led to the distinction between theft and embezzlement. The immediate consequence of the doctrine that a wrongful taking is of the essence of theft is, that if a person obtains possession of a thing innocently, and afterwards fraudulently misappropriates it, he is guilty of no offence. This doctrine has been qualified by a number of statutory exceptions, each of which has been attended with difficulties of its own. The first of them is contained in the statute which provides that a clerk or servant, or person employed in the capacity of a clerk or servant,

who embezzles property received on behalf of his master, shall be deemed to have stolen it. This enactment was interpreted as creating a new offence, distinct from ordinary theft; and a great number of cases, involving considerations technical and subtle to the last degree, have been decided on various points connected with it; and it was found necessary for the legislature to interfere in order to prevent many failures of justice. Clerks and servants, however, formed only one class of persons who had opportunities of committing breaches of trust for which the common law provided no punishment. Bankers, merchants, brokers, solicitors, factors, and other agents might and did commit similar offences; and another great exception in the rule of the common law was made to include such cases. These enactments are elaborate and intricate, and present special difficulties of their own. The existing law will be found in 24 and 25 Vict. c. 96, sects. 75 and following. The first act on the subject was passed in the reign of George III. The case of bailees, singularly enough, remained unprovided for after the rest, and a carrier stealing a parcel intrusted to him for carriage committed no crime till the fraudulent conversion of chattels, money, and valuable securities by bailees was made larceny by 20 and 21 Vict. c. 54. The common-law rule, though thus nearly eaten up by exceptions, still survives as to all persons who come innocently into the possession of the property of others otherwise than as clerks, servants, bankers, merchants, brokers, solicitors, factors, and other agents or bailees. The case of the finder of goods, already referred to, furnishes an instance. This state of the law is obviously most objectionable, not only on account of its extreme intricacy and technicality, but also because the numerous exceptions made to the common-law rule are inconsistent with the principle on which it depends. We have therefore defined theft in such a manner as to put wrongful taking and all other means of fraudulent misappropriation on the same footing.

The definition, properly expounded and qualified, will, we think, be found to embrace every act which in common language would be regarded as theft, and it will avoid all the technicalities referred to as arising out of the common-law rules, as well as out of the intricate and somewhat arbitrary legislation the course of which we have sketched above. The provisions of the bill on this subject differed considerably in language from those of the Draft Code,

See 24 & 25 Vict. c. 96, sect. 3.

but they were framed with the same objects, and would have effected them in another way. The bill treated theft, criminal breach of trust, and obtaining property by false pretences as three ways of committing one offence, termed fraudulent misappropriation.' These offences were so defined that they would have covered the same ground as theft, false pretences, and criminal breach of trust as defined by the Draft Code; but many things which according to the Draft Code are theft, would according to the bill have been criminal breaches of trust. The Draft Code defines the offence of obtaining money by false pretences substantially in accordance with the present law, and 'criminal breach of trust' is retained as a distinct offence. The other cases of 'fraudulent misappropriation' are denominated 'theft.'"'

Those concerned in the administration of criminal justice will regard the change proposed above with a sigh of relief. Of all branches of the law, there is none in which the pleader is entangled in such a maze of irrational technicalities as in larceny. Of these we may give the following

illustrations:

A "jew-boy," to take a case of which the old writers give us several instances, provides himself with a round piece of tin about the size of a shilling, which he puts in his mouth; this being a trick, if we are to judge from the reports, common to those whom the reporters call "jew-boys." He buys an article in a shop with a crown piece, and, on receiving the change, pretends to have scruples as to the genuineness of f a shilling which is part of the change. To test, as he declares, this shilling, he puts it in his mouth, where he retains it, drawing out in its place the piece of tin. With an air of insulted integrity he charges the shopkeeper with having palmed off the tin on him, and the shopkeeper, shocked at his mistake, takes the tin, replacing it by a good shilling. The "jew-boy" goes off with his plunder, but is arrested on the discovery of the deceit. He cannot, however, be convicted of passing a counterfeit shilling, for the piece of tin was not a counterfeit. And he can be convicted of stealing the shilling he obtained as a substitute for the

Report, p. 28.