decisions are clearly wrong, and are generally so considered; for if the guilt of the victim were a defense all the rogue would need to do to plunder with impunity would be to devise a scheme by which he would induce his intended victim to think that he was about to defraud somebody. The result would be a double injury to the public. Many who would not think of doing wrong would be led to crime, and the plundering of the public would become a legitimate business. The green-goods man could safely play his game, because his victim designed to pass the bad money on the public. To adopt this policy would give free license to villains and sharpers to prey upon those who are credulous through the infirmities of age, or the inexperience of youth, as well as a large class who are weak-minded by nature-the very part of the community whom it is the policy of the law to protect. For these reasons it is now generally held that the guilt of the victim is no defense of the accused. That both deserve punishment is no reason why either should escape.

§ 23. Entrapping criminals. Many times it is difficult or impossible to convict one constantly violating the law, unless someone is sent to procure a violation, for the reason that those who know of the transactions will neither complain nor testify concerning them. An instance of this kind is furnished in the common case of the sale of liquor without a license, on a holiday, to a minor, and so forth. That the person to whom the liquor was sold came and purchased it for the sole purpose of

convicting the defendant of an illegal sale, is no defense (19).

§ 24. Consent as a defense. Consent by the person injured is a common defense to criminal charges of various kinds. Concerning this defense it is necessary to observe whether the act done was the act consented to, and whether the act if consented to would still be criminal. If the charge is rape, genuine consent would be a defense, because lack of consent is an essential element of the crime. But in such crimes when consent is the defense, it may be that the woman violated lacked the mental capacity, from youth or simple-mindedness, to consent, or that she consented to one thing and he did another, in either of which cases no consent is made out sufficient to constitute a defense. The doctor who tells his patient that he will treat her with instruments and who takes advantage of her consent to such treatment to have carnal connection with her without her knowing what he is doing, is as guilty of rape as if he had overpowered her will by force. For the same reason, some courts have held that if a man obtains sexual intercourse with a woman by impersonating her husband he is guilty of rape; because she only consented to intercourse with her husband, a lawful act, and he has committed another act-adultery. But if consent is actually obtained to the act which was done, it is a good defense, though it may have been obtained by a false promise to marry or fraudulent representation that the accused was a single man. In prosecutions for larceny where the defense is consent, and the proof is that a decoy

(19) People v. Curtis, 95 Mich. 212.

was set to entrap the accused, no consent is made out unless there is a direct invitation to the accused to take the property. If a detective says to the suspect: "Let us rob that store," goes with the suspect, opens the door, and hands him the goods, the detective being the agent of the owner, his consent is the owner's consent, and no crime is proved. But when the city marshal, suspecting pick-pockets, disguised himself, feigned drunk, staggered about the streets, and fell down in an alley, till the defendants came and took the money from his pockets, the court held that this conduct was no consent and that the defendants were guilty (20).

At

§ 25. Classes of crime. As to the enormity of the of fense, crimes at common law were divided into three classes, treason, felony, and misdemeanor. The principal practical problem of today has to do with the method of distinguishing between felonies and misdemeanors. common law a felony was a crime as a result of which the criminal's goods were forfeited to the king, and most, if not all, felonies were punishable with death. Today we have no forfeiture of goods for felony, and the death penalty is generally abolished; and therefore it is difficult today to determine exactly in each case whether the crime is a felony or not. If it is an old common law crime, which was considered a felony before forfeiture and death penalty were abolished, it is generally considered a felony now; but as to a large class of crimes created by modern statute, there seems to be no positive rule to apply, in the absence of an express statute upon the point.

(20) People v. Hanselman, 76 Cal. 460.

And therefore, in a number of states, the legislatures have enacted that crimes punishable by imprisonment in the state penitentiary shall be deemed to be felonies, and all lesser offenses are misdemeanors. Where the same act constitutes two crimes, for example, assault and robbery, the assault being a misdemeanor and the robbery a felony, the lesser offense is merged and drowned in the greater, and the culprit can be convicted only of the greater offense on a prosecution for this. But because this rule has often resulted in the miscarriage of justice, statutes have been passed in a number of states providing that proof of the greater shall not prevent conviction on a charge of the lesser offense, and that on a prosecution for a greater offense, including a lesser, the jury shall have power to convict of the lesser offense on the charge of the greater. But in the absence of such a statute, there could be no conviction of the lesser offense on these facts; because the accused is entitled to be informed of the offense of which he is charged and cannot be convicted of one offense on the prosecution for another.

§ 26. Merger of civil remedy in the crime. The doctrine that all civil remedies in favor of the party injured by a felony, are, as it is said in the earlier authorities, merged in the higher offense against society and public justice; or, according to the later cases, suspended until the termination of the prosecution against the offender, was the well-established rule of the law in England, and seems to have had its origin there at a period long before the settlement of this country by our English ancestors. The source whence the doctrine took its rise in England

is well known. By the ancient common law, felony was punished by the death of the criminal, and the forfeiture of all his goods and lands to the crown. Inasmuch as an action at law against a person, whose body could not be taken in execution and whose property and effects belong to the king, would be a fruitless and useless remedy, it was held to be merged in the public offense. Besides, no such remedy in favor of the citizen could be allowed without a direct interference with the royal prerogatives. Therefore, a party injured by a felony could originally obtain no recompense out of the estate of the felon, nor even the restitution of his own property, except after the conviction of the offender. But these incidents of felony, if they ever existed in this country, were discontinued at a very early period in our colonial history. Forfeiture of lands or goods on the conviction of crime, was rarely, if ever, exacted here; and in many cases, deemed in England to be felonies and punishable with death, a much milder penalty was inflicted by our laws. Consequently the remedies to which a party injured was entitled in cases of felony were never introduced into our jurisprudence. But without regard to the original grounds of the doctrine, it has been urged in cases arising in this country that the rule now rests on sound public policy; that the interests of society require, in order to secure the effectual prosecution of offenders by persons injured, that they should not be permitted to redress their private wrongs, until public justice had been first satisfied by the conviction of the felon; that in this way a strong incentive is furnished to the individual to dis