more properly called a confusion of rights, or extinguish

§ 146. Merger of tort in felony-English rule. In the ancient common law, where the same act constituted both a tort and a felony, the former merged in the latter so that the civil remedy was extinguished. By the great weight of English authority, the tort does not merge in the felony. According to the English rule, however, the civil remedy is suspended until the criminal prosecution is terminated." The reason assigned for this rule is that it tends to incite the victim to bring on a speedy criminal prosecution. And, growing out of this rule, it has been held that the plaintiff, in the tort action, must allege and prove due diligence on his part in the criminal prosecution." This is not essential, however, where the plaintiff is not the felon's victim. The reason for this latter rule is, no duty rests upon the plaintiff in such a case to prosecute the felon criminally.

§ 147. Merger of tort in felony-American rule.-In this country, as in England, the tort does not merge in the felony. In a few states, the English rule, that the civil remedy is held in abeyance until the criminal prosecution is terminated, was adopted; but in most states it was repudiated. The reason assigned for its repudiation in the latter states was, that it was not adapted to our conditions and therefore was

32 Bouvier's Law Dict., title "Merger," head "Rights."

4 Higgins v. Butcher, Yelv. 89. See also Cooper v. Witham, 1 Sid. 375; 1 Bish. New Crim. L. (8th ed.), § 267.

5 Crosby v. Leng, 12 East 409; Chowne v. Baylis, 31 Beav. 351; Vincent v. Sprague, 3 U. C. Q. B. 283.

6 Cox v. Paxton, 17 Ves. Jr. 329; Morton v. Bradley, 27 Ala. 640.

7 Appleby v. Franklin, 17 Q. B. Div. 93; Osborn v. Gillett, L. R. 8 Ex. 88, 28 L. T. 197, 21 W. R. 409. 8 Morton v. Bradley, 27 Ala. 640; Bell v. Troy, 35 Ala. 184; Weekes v. Cottingham, 58 Ga. 559; Nowlan v. Griffin, 68 Maine 235, 28 Am. Rep. 45n; Hutchinson V. Merchants' &c. Bank, 41 Pa. St. 42, 80 Am. Dec. 596.

of little or no importance. In those states which adopted it statutes have been passed abolishing it, so that in this country to-day it is obsolete.10

§ 148. Merger of tort in felony-History of the doctrine -Judge Bigelow's view.-"The doctrine, that all civil remedies in favor of a 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 more recent cases, suspended until after the termination of a criminal prosecution against the offender, is the well settled rule of law in England at this day (1854), and seems to have had its origin there at a period long anterior to 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 lands and goods 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 useless and fruitless remedy, it was held to be merged in the public offense. Besides, no such remedy in favor of the citizens 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 a felon, nor even the restitution of his

9 Boardman v. Gore, 15 Mass. 331; Hyatt v. Adams, 16 Mich. 180; Patton v. Freeman, 1 N. J. L. 134; Williams v. Dickenson, 28 Fla. 90, 9 So. 847; Lofton v. Vogles, 17 Ind. 105; Barton v. Faherty, 3 Greene (Iowa) 327, 54 Am. Dec. 503; Blassingame v. Glaves, 6 B. Mon. (Ky.) 38; Newell v. Cowan, 30. Miss. 492; Howk v. Minnick, 19 Ohio St. 462, 2 Am. Rep. 413; Allison v. Farmers' Bank, 6 Rand.

(Va.) 204; Hoffman v. Carow, 22 Wend. (N. Y.) 285; Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473; Gould v. Baker, 12 Tex. Civ. App. 669, 35 S. W. 708.

10 Alabama: Civ. Code (1907), § 2481; California: Deering Code Civ. Proc. (1915), § 32; Maine: Rev. Stat. (1903), ch. 120, § 14; New York: Code Civ. Proc. (1902), § 1899; Pennsylvania: Stewart's Purd. Dig., p. 744, § 4.

own property, except after a conviction of the offender. But these incidents of felony, if they ever existed in this state, were discontinued at a very early period in our colonial history. Forfeiture of lands or goods, on conviction of crime, was rarely, if ever, exacted here; and in many cases, deemed in England to be felonious 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. * * Without regard, however, to the causes which originated the doctrine, it has been urged with great force and by high authority, that the rule now rests on public policy; that the interests of society require, in order to secure the effectual prosecutions of offenders by persons injured, that they should not be permitted to redress their private wrongs, until public justice has been first satisfied by the conviction of felons; that in this way a strong incentive is furnished to the individual to discharge a public duty, by bringing his private interest in aid of its performance, which would be wholly lost, if he were allowed to pursue his remedy before the prosecution and termination of a criminal proceeding. The whole system of the administration of criminal justice in England is thus made to depend very much upon the vigilance and efforts of private individuals. There is no public officer, appointed by law in each county, as in this commonwealth, to act in behalf of the government in such cases and take charge of the prosecution, trial and conviction of offenders against the laws. It is quite obvious that, to render such a system efficacious, it is essential to use means to secure the aid and co-operation of those injured by the commission of crimes, which are not requisite with us.

"On the other hand, in the absence of any reasons, founded on public policy, requiring the recognition of the rule, the expediency of its adoption may well be doubted. If a party is compelled to await the determination of a criminal prose

cution before he is permitted to seek his private redress, he certainly has a strong motive to stifle the prosecution and compound with the felon. Nor can it contribute to the purity of the administration of justice, or tend to promote private morality, to suffer a party to set up and maintain in a court of law a defense founded solely upon his own criminal act. The right of every citizen under our Constitution, to obtain justice promptly and without delay, requires that no one should be delayed in obtaining a remedy for a private injury, except in a case of the plainest public necessity. There being no such necessity calling for the adoption of the rule under consideration, we are of the opinion that it ought not to be engrafted into our jurisprudence. We are strengthened in this conclusion by the weight of American authority, and by the fact that in some of the states, where the rule had been established by decisions of the courts, it has been abrogated by legislative enactments."11

§ 149. Felony versus misdemeanor-Doctrine of merger at common law.-At common law the distinctions between a felony and a misdemeanor were much greater than they are today. A misdemeanant was entitled at common law to certain privileges which were not allowed to a felon. Thus, the former was entitled to the full privilege of counsel, to a copy of the indictment against him and to a special jury; but a felon was not entitled to any of these privileges. Owing to these distinctions a person indicted for a felony might not be convicted of a misdemeanor which formed a constituent part of the felony.12 His acquittal of the felony, however, was no bar to an indictment for the constituent

11 Boston & W. R. Corp. v. Dana, 1 Gray (Mass.) 83, Knowlton's Cases 20.

12 Rex v. Cross, 1 Ld. Raym. 711; Reg. v. Woodhall, 12 Cox Cr. C. 240; Black v. State, 2 Md. 376; Gillespie v. State, 9 Ind. 380,

(overruling State v. Kennedy, 7 Blackf. (Ind.) 233); Commonwealth v. Roby, 12 Pick. (Mass.) 496, (overruling Commonwealth v. Cooper, 15 Mass. 187); Hunter v. Commonwealth, 79 Pa. St. 503, 21 Am. Rep. 83.

misdemeanor.13 Where a person was indicted for a misdemeanor, and the proof showed that the crime committed was a felony, the court would order an acquittal. In which case, however, the defendant, subsequently, might be indicted and tried for the felony.14 Again, where a misdemeanor at common law was made a felony by statute an indictment for the misdemeanor would not lie. "Unless the misdemeanor merges, the conviction therefor being no bar to a subsequent indictment for felony, one might be punished twice for the same offense. An ample sufficient reason is that the offense has been made a felony and a felony only, and therefore an indictment as for a misdemeanor will not lie."15

At common law, a constituent misdemeanor merged in the felony of which it formed a part. This doctrine of merger resulted from the marked differences which existed at common law between felonies and misdemeanors, not only in extent of punishment and consequences of conviction, but also in the methods of procedure as stated above. For if a misdemeanor formed a constituent of the felony, the prisoner would lose substantial advantages of the method of trying misdemeanors. And where one was indicted for misdemeanor and proof showed a felony he was acquitted of the misdemeanor in order to indict and try him for felony. Consequently it has been held in both England and America that where an indictment was for a conspiracy to commit a felony, though the conspiracy would be a misdemeanor, if the object of the conspiracy was completed and a felony was committed, then the misdemeanor would merge in the felony.1

13 Reg. v. Eaton, 8 Car. & P. 417; Reg. v. Woodhall, 12 Cox Cr. C. 240; Commonwealth v. Gable, 7 Serg. & R. (Pa.) 423.

14 Harmwood's Case, 1 East P. C. 411, 440; Reg. v. Nicholls, 2 Cox Cr. C. 182; Rex v. Evans, 5 Car. & P. 553, 24 E. C. L. 553.

15 Rex v. Cross, 1 Ld. Raym.

16

711. See also Reg. v. Button, 11 Q. B. 929, 63 E. C. L. 929, 3 Cox Cr. C. 229.

16 Graff v. People, 208 Ill. 312, 70 N. E. 299. See also Commonwealth v. Kingsbury, 5 Mass. 106; State v. Hattabough, 66 Ind. 223; People v. Mather, 4 Wend. (N. Y.) 230, 21 Am. Dec. 122.