CHAPTER VI. OF INDICTABLE MISDEMEANOURS, WITH PRECEDENTS. SECTIONS. I.-Of Indictable Misdemeanours in general. II.-Of Assaults; and herein, 1. Of Common Assaults. 2. Of Assaults aggravated by the Nature and Degree of Violence used. III.-Barratry. IV.-Challenging and bearing Challenges. 1. Of Cheats indictable at Common Law. VIII.-Concealing Birth of Child. IX.-Conspiracy. X.-Cruelty to Children and Servants. XI.-Embezzlement (not felonious); and herein, 1. Of Embezzlements being Misdemeanours at Common Law. 2. Of Embezzlements made Misdemeanours by Statute. XII.-Escape and Rescue. XIII.-Fish, taking in privileged places. XIV.-Forcible Entry and Detainer. XV.-Forestalling, Regrating, and Engrossing. XVI.-Game, Offences relating to. XVII.-Indecencies; and herein, 1. Of Offences against Religion and Public Worship. 2. Of Offences against the King and Government, and Magistrates. 3. Of Offences against Public Decency and Feeling. XVIII.-Libels. XIX.-Nuisances; and herein, 1. Of Omissions to Repair Highways and Bridges. 3. Of Carrying on unwholesome, noisy, or immoral Trades, &c. · XX.- Offices, Offences relating to; and herein, 1. Of Refusing to accept Offices. 2. Of Extortion, Oppression, and Fraud in Office. 3. Of Neglect and Ill-performance of Duty. XXI.-Orders of Justices, disobeying. XXII.—Receiving things unlawfully (but not feloniously) obtained or embezzled. XXIII.-Records, stealing or destroying. XXIV.-Riots, Routs, and Unlawful Assemblies. XXV.-Solicitations to commit Offences. XXVI.-Spring Guns, &c. setting illegally. XXVII.-Wills, purloining or destroying. XXVIII.-Writings relating to Real Estate, purloining or concealing. SECTION I. OF INDICTABLE MISDEMEANOURS IN GENERAL. THE term misdemeanour includes every indictable offence below the degree of felony. It is thus distinguished from the higher class of crimes by a line of boundary which cannot be mistaken; but its extent downwards is less capable of being marked with precision. As the moral criminality of an act or omission neither is, nor ought to be, the criterion of legal responsibility attendant upon it, the question has sometimes arisen whether certain blameable conduct is punishable by law, or is left by it to the sting of conscience and the indignation of society. So in cases of injury done to an individual, doubts have been occasionally suggested whether the wrong doer was amenable to criminal justice, or liable only to be compelled to make compensation by civil process (a). These difficulties only arise in reference to cases unprovided for by statute; for, of course, when an act is made a misdemeanour (a) The different fates which the two following bills of indictment, arising out of different portions of the same transaction, encountered at a Middlesex session, though not cited as any authority on the subject generally, will serve to illustrate the distinction between public and indictable, and private and actionable injuries. Two indictments were preferred against A. B. as for two misdemeanours. The first was for scattering over the private inclosed premises of the prosecutor wilfully, and with intent to destroy his poultry, divers quantities of by statute, no doubt as to its character can arise; and when it is prohibited either with or without a specific penalty, a plain rule of construction will determine the question, whether it is indictable or to be otherwise visited with penalties. In every questionable case, it is necessary to bring the supposed offence within some rule of common law clearly embracing it, or to show by some recognized authority, that it is within such rule, as the unwritten penal law is not to be extended by fanciful interpretations. It may be laid down as a general rule, that in order to constitute a culpable act a misdemeanour at common law, it must either consist of an attempt to commit an offence clearly indictable; or it must violate the public peace; or it must have a direct tendency to injure the public by causing the peace to be disturbed; or the moral feeling of the public to be injured or insulted; or the course of justice to be assailed or vilified; or public rights to be invaded; or the ordinary securities of dealing to be unsettled by frauds against which ordinary prudence cannot guard. In the application of this rule to particular instances, there has been occasional uncertainty, which renders it necessary to look more closely than to abstract principle. Thus, for example, a written defamation of a private person is holden to be punishable by indictment by reason of its tendency to provoke the party attacked to break the peace; while words, however provoking, are not indictable; although considered with reference to the public peace, their effect is perhaps more likely to be injurious than the graver but more remote effect of writing, which appeals less directly to the passions. It will, therefore, be necessary to enumerate the general heads of misdemeanour at common law, as well as to state the law applicable to statutory prohibition; and to glance at some cases which have been considered doubtful. Misdemeanours indictable at Common Law.]-The following are the principal classes of misdemeanour indictable at common law. 1. Breaches of the peace;-as assaults with or without battery; affrays; combats, whether from anger or for money; riots, and forcible entries. 2. Acts, which, being without legal warrant or excuse, tend directly, or have been holden to tend, to produce breaches of the peace, as challenges, letters provocative of challenge, and libels on individuals, whether by writing or printing, or by signs and pictures, and whether the charges made or implied be false or true. 3. All nuisances generally affecting the public, as the carrying on unwholesome trades in crowded neighbourhoods, obstructing or encroaching on highways, bridges, or harbours, and omitting to perform the duty of repairing them, or houses standing on them (b). Keeping a ground for shooting pigeons near a highway, the consequence of which was that persons collected outside to shoot at the birds which escaped from the ground, thus making a great noise, and endangering the public, is indictable, for the nuisance is of a public nature, though occasioned by an act in itself innocent (c). 4. Outrages on public decency or feeling, as the exhibition of indecent prints, exposure of the person, openly keeping brothels, and removing dead bodies from the grave. 5. Words or writings tending to incite sedition or to produce an alteration, by illegal violence, in any public institutions or laws. 6. Indecent attacks on the religion established by law, and wilful disturbances of divine service, whether performed in the established church, or in protestant or Roman catholic chapels. 7. All contempts and obstructions of the execution of powers granted by statute (d), or of courts of law and magistrates in the discharge of their duty; all attempts to prevent the course of justice, as by perjury, subornation of perjury, or abstracting a witness; and all interference with the process of the law, as escapes and rescues. 8. All corrupt breaches of duty in public officers, and refusals to execute offices by parties required by law to serve them. 9. All attempts to commit an offence, whether felony or misdemeanour; as for example, an attempt to bribe a public officer (e) or a juryman (f), or to prevail on a party to commit perjury, or to provoke him to send a challenge (g), and all solicitations of another to commit any crime soever, which are no less criminal though the solicitations may fail (h). Again, the attempt to commit a misdemeanour created by statute, is in itself a misdemeanour at common law (i). It may be observed, that although a bare criminal intent is not in itself indictable, if merely expressed in words or gestures, or otherwise, without (g) R. v. Phillips, 6 East, 463. (h) Per Lord Mansfield, in R.v. Scofield, Cald. 400; East, P. C. 1030, S. C.; R. v. Higgins, 2 East, 5. See 3 G. IV. . c. 38, s. 3. (i) See per Le Blanc, R. v. Cartwright, R. & Ry. 108, n.; R. v. Butler, 6 C. & P. 368, and per Patteson, J., in R. v. Harris, id. 129; R. v. Roderick, 7 id. 795, acc. further proceeding to the crime to which it points, yet if it is accompanied by any (j) act being a proximate step and attempt towards the accomplishment of the crime, that act, though in itself out of the reach of indictment, will not be judged alone, but as coupled with the criminal intent which prompted it, and is therefore punishable on indictment (k). Thus, the mere possession of counterfeit coin not being an act, was not per se indictable at common law, though there might be an intent to utter it (7). But if the possession was detected under circumstances which lead to the belief that it was obtained with intent to utter it, as, for instance, having possession of a large quantity wrapped up in such a way, as to preserve the impression made on soft base metal, such obtaining will unquestionably be a substantive offence (m). 10. Conspiracies, an anomalous head of offence, which will be particularly considered hereafter under that title, in Section 8 of this chapter. Offences prohibited by Statute.]-All offences created or declared by statute to be misdemeanours, are of course indictable as such by force of it; but where a statute creates an offence, not having been one at common law, and goes on in the prohibitory clause to annex a penalty to be levied in a particular mode, e. g., on conviction before one or more justices of the peace, the specific penalty or other punishment to be enforced by the mode pointed out, is all that can be inflicted, and no indictment will lie for disobeying the enactment (n). On the other hand, if the prohibition of the particular act be general, in the first instance, and a specific penalty or punishment is provided (j) In Reg. v. Meredith, 8 C. & P. 589, Lord Abinger said, that an attempt to commit a misdemeanour is not indictable unless there be some illegal act done, and that taking any step towards committing a misdemeanour, unless by an illegal act, is not sufficient. (*) See per Lord Mansfield, in R. v. Scofield, Cald. 400; East's P. C. 1030, S. C. The facts are stated, post, Ch. VII. s. 15, note. Also Fuller's case, East's P. C. 92; Bacon's case, 1 Levinz, 146; 11 Co. 98, b.; 1 Keble, 809; R. v. Ponsonby, Sayer's R. 245; Bull. N. P. 211; Reg. v. Martin, 9 C. & P. 215. (1) R. v. Stewart, R. & Ry. 288; R. v. Heath, id. 184. See now 2 W. IV. c. 34, s. 8. Before this, however, the having coin ing tools in possession with intent to coin half guineas, &c. was held indictable as a common law misdemeanour, after a doubt by Lord Hardwicke, and two arguments in the king's bench, R. v. Sutton, East, 10 G. II. Stra. 1074; Ca. t. Hard. 370; Leach, C. C. 42, n., S. C.; Lee, J., saying, "All that is necessary in this case is an act charged and a criminal intent joined to that act;" and the court is reported by Strange to have said, "Here the intent is the offence, and the having in his custody an act that is the evidence of that intent." (m) R. v. Fuller and Robinson, R. & Ry. 308. See now 2 W. IV. c. 34. (n) R. v. Wright, 1 Burr. 543; R. v. Douse, 1 Ld. Raym. 672. |