were no intrinsic qualities the possession of which assigned an act to either class. In distinguishing felony from misdemeanor, we shall also find that the difference is only one founded on the consequences of each. But the la ter classification is exhaustive, and not a cross-division, as in the case of crimes and civil injuries, inasmuch as the same act can not be both a felony and a misdemeanor.

[In the United States, the distinction between felony and misdemeanor has lost most of its significance. Felony no longer works forfeiture of either goods or lands; benefit of the clergy does not exist; where the crime of an accessory is made by statute a substantive offense, as it is in most of the states, an accessory can be convicted before the principal is indicted; generally a civil action for damages can be brought before a criminal prosecution is instituted; a person charged with misdemeanors, as well as one charged with felony, is brought before the court in the first instance by a capias; in most of the states one indicted for felony can be found not guilty of the felony but guilty of an included misdemeanor; and in cases of felony and misdemeanor alike, the accused is entitled to have a copy of the indictment, and to be defended by counsel. In states where there is no crime but statutory crime, the distinction is little more than a classification of punishment. Generally, in the United States, felony means an offense punishable by death or by imprisonment in the penitentiary; and misdemeanor is a punishable offense which is not a felony. In some states, as New York, Kentucky, Ohio, Michigan, Indiana, Illinois, and Wisconsin, this classification is expressly made by statute. And in Iowa, where there is no capital punishment, any crime punished by imprisonment in the penitentiary is felony. It is essential to the validity of a trial for felony that the defendant be present in court. This is not essential in misdemeanors. Also an unofficial person may arrest where a felony has been committed; but not in case of a misdemeanor.]

It is a popular idea, which, to a certain extent, the law has countenanced, that the distinction into felonies and misdemeanors is one founded on the degree of enormity of the

crime. That this is not the case necessarily, will be seen when we consider what offenses belong to the one class, and what to the other. No one will maintain that perjury, which is a misdemeanor, is of less gravity than simple larceny, which is a felony. As a rule, however, the more serious crimes are felonies.

What, then, is the origin and force of this distinction, a distinction attended with important consequences? To obtain an answer, we must look back to the period of feudal law. The term "felony" is derived from two words,(z) the one signifying a fief or feud, the other price or value. Thus the term was applied to those offenses which resulted in the tenant's forfeiture of his land to the lord of the fee; though primarily it signified the penal consequences, i. e., the forfeiture, of these offenses. By another slight deflection, the term was extended to offenses which involved forfeiture of goods. Blackstone thus defines a felony to be "an offense which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded according to the degree of guilt." (a) Capital punishment, associated in the popular mind with felony, was an usual, though not a necessary, incident. Petit larceny was a felony, but not capitally punished; standing mute at a trial was punished with death, though not a felony. Though the ground of distinction into felony and misdemeanor was the consequence of the crime, of course, originally, there must have been some reason for attaching the graver consequences to one act and not to another. This was furnished by a consideration of the gravity and commonness of the offense, a consideration not attended to in later periods.(b)

It may be noticed that where a statute declares that an offender against its provisions shall be deemed to have feloniously committed the act, the offense is thereby made a felony.(c)

“Misdemeanor" is to be regarded as a negative expres

(z) Fee-lon.

(a) 4 Bl. 95.

For some conjectural derivations, v. 4 St. Bl. 7.
(6) Fitz. St. 57.

(c) R. v. Johnson, 3 M. & Sel. 556.

sion; being applied to indictable crimes not falling within the class of felonies.() In a wide and general sense, the term is also used synonymously with "crime."

Recently, the legislature struck at the root of the distinction we have been treating of; but the terms "felony and "misdemeanor," having become firmly attached to the various indictable offenses, still remain. It was provided, that no confession, verdict, inquest, conviction, or judgment of or for any treason, or felony, or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat.(e)

In addition to the distinction as to forfeiture, which we have just seen to be a thing of the past, there are other points, some nominal, others real, which distinguish felonies from misdemeanors:

i. As to arrest.-It will suffice here, to state generally that an arrest is justifiable in certain cases of supposed fel. ony, where it would not be in cases of supposed misdemeanor.(f)

ii. As to the trial.-Misdemeanors may be tried upon an indictment, inquisition, or information; felonies upon the first two only.

The right of peremptory challenge is confined to those charged with felony.

The legislature requires that certain terms of penal servitude should be inflicted on those convicted of felony after a previous conviction for felony, or for certain misdemeanors: whereas there is no such provision with regard to misdemeanors committed after a previous conviction.

On minor points there is also a difference, e. g., the form

(d) "Their general name-misdemeanors-bad behavior-happily describes their general character. The principal offenses included under this head are libel, conspiracy, and nuisance. The connection between them may not, at first sight, be apparent; but a comparison of their definitions will show that though, in some respects, they are dissimilar, the essence of all these offenses is the same. . Each of these offenses is based upon the notion of a normal state of repose and general order, which it is criminal to disturb either by writing, by any combination, or by any willful act or omission."-Fitz. St. 145.

(e) 33 and 34 Vict. c. 23, 3 1.

*1870 (f) v. p. 243 et seq.

of oath taken by the jury,(g) the mode of swearing the jury; again, in misdemeanors, the defendant is not given in charge to the jury ;(h) and in felonies the prisoner must be present throughout the trial, and the jury, when the trial has once commenced, are not allowed to separate till their verdict has been given, or they have been discharged from giving a verdict; while a case of misdemeanor may be tried although the accused be not present, if he have previously pleaded,(i) and the jury are allowed to separate in the course of the trial just as in civil cases.

[In the United States felonies are tried upon indictment. Misdemeanors are mostly tried upon indictment. There are, in the larger cities, courts for the trial of specified misdemeanors, where there is no grand jury, and where the trial is by the judge unless the defendant demand a jury.

Peremptory challenges are allowed in cases of misdemeanor as well as felonies.

The form of oath administered to the jury in trials for felony, is, with slight variations, administered to the jury in all criminal prosecutions in the United States.]

iii. As to the civil remedy.—As we have seen,(k) the felony must be prosecuted before a civil action is commenced with reference to the same act; in misdemeanor, there is no such necessity.

(g) v. pp. 330, 333.

(h) v. p. 334.

(i) 8th report of the Commissioners on Criminal Law, p. 143; 1. Chitty, Cr. L. 532; Arch. 155; v. also p. 373.

(k) v. p. 3, n.

CHAPTER III.

ESSENTIALS OF A CRIME.

In order to ascertain who are and who are not apable of committing crimes, it will be necessary to examine certain terms which are liable to confusion.

In the first place we must deal with those elements which -occur in every case of crime; and the absence of either of which excludes the act from the category of crimes—viz., Will, Criminal Intention, or Malice. It will be more convenient to treat of them in this order, though obviously the reverse of the actual sequence of events. (1)

To will an act is "to go through that inward state which, as experience informs us, is always succeeded by motion" (k); that is, unless the body be physically incapable. And will is to be distinguished from those wishes which are not carried into execution; for example, excited by jealousy, I wish to kill B., but fear of the law prevents me from willing that act. If the act be not willed, it is said to be involuntary, and of course does not render its doer amenable to the criminal law.

(k) Fitz. St. 77.

(1) The text here will bear some qualification. It is, indeed, true, in general, that to constitute a crime there must be an act, and, contemporaneous with it, a criminal intent. But this is not always true, using the words in their ordinary sense; and in some cases, it is not true at all.

It is not always true that there must be an act, using the word in its ordinary sense. To constitute a misprision, it is not necessary there should be an active concealment, but only an omission to inform. Tə have in possession is not an act, yet it is a crime to have counterfeit coin or forged bills, with a criminal intent.

It is not always necessary that the defendant should intentionally or even consciously do the act which forms the crime; for one engaged in committing one crime may, without being aware of it, do a different act, and be guilty of a wholly different crime.

It is not always necessary that there should be a criminal intent