Bishop says, "There is at common law a wide distinction between felony and misdemeanor. It affects alike the punishment, the procedure, and several rules governing the crime itself. Out of the distinction grows the doctrine that the same precise act, viewed with reference to the same consequences, can not be both a felony and a misdemeanor, -a doctrine which applies only when the identical act constitutes both offenses."17

§ 150. Felony versus misdemeanor-The modern doctrine-Common-law rule abrogated.-Modern legislation and judicial decisions have abrogated to a great extent the doctrine of merger as it existed at common law. The technical line of demarcation between felonies and misdemeanors still exists, but most of the distinctions which existed at common law have been swept away. In many states it is the law that a person charged with an atrocious offense may be convicted of any constituent offense of a lower degree, provided such minor offense is substantially included in the description in the indictment or accusation, and even without regard to the technical line of demarcation between felonies and misdemeanors.18 Bishop, after discussing the rule that a conspiracy merges in a felony, says, "This doctrine, the reader perceives, is contrary to just principle; it has been rejected in England; and, though there may be states in which it is binding on the courts, it is not to be deemed general American law."19 At common law it has been frequently held that if a misdemeanor (e. g. assault) turns out to be a felony (e. g. robbery) then, on the ground that the misdemeanor is extinguished by being merged in the felony, the defendant must be acquitted of the felony. A more rational doctrine, however, has been established by statutes, and in some jurisdictions by common 19 1 Bish. New Crim. L. (8th ed.), § 814.

171 Bish. New Crim. L. (8th ed.), § 787.

18 Graff v. People, 208 Ill. 312, 70 N. E. 299.

law, to the effect that the prosecution may in such cases waive the felony, and prosecute only for the constituent misdemeanor, supposing the misdemeanor be proved.2 According to Lord Denman, "A misdemeanor which is part of a felony may be prosecuted as a misdemeanor, though the felony has been completed."21 And it is the opinion of Chief Justice Andrews that, "Upon the whole examination we are of opinion, upon principle as well as upon authority, that this conviction for a conspiracy to commit theft ought to be sustained, although the evidence by which it was proved, proved also that the theft had been actually committed."22

§ 151. Crimes of equal grade do not merge.-The doctrine of merger is not applicable to crimes of equal grade, even at common law. It follows, therefore, that where the two crimes are both misdemeanors, or both felonies, there is no merger. Thus where the indictment is a misdemeanor and the offense for the commission of which the conspiracy was formed is also a misdemeanor and is completed, there is no merger, and so if the conspiracy charged is a felony, and when completed the crime is a felony, there is no merger.2

23

§ 152. Rule where one act includes two or more crimes.As a general rule, where the same act includes the requisite ingredients of two or more distinct crimes the offenses are not merged; and a prosecution for one will not bar a prosecution for the other, or others.24 In some jurisdictions, how

20 Whart. Crim. L. (11th ed.), § 33.

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

22 Chief Justice Andrews in State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. 121, Knowlton's Cases 109, 115.

23 Graff v. People, 208 Ill. 312 70 N. E. 229.

24 Hughes v. Commonwealth, 131 Ky. 502, 115 S. W. 744, 31 L. R. A. (N. S.) 693n; Morey v. Commonwealth, 108 Mass. 433; State v. Elder, 65 Ind. 282, 32 Am. Rep. 69; State v. Inness, 53 Maine 536; State v. Williams, 11 S. Car. 288.

ever, the contrary doctrine obtains.25 In harmony with the general rule, it has been held that an acquittal or conviction under an indictment for the murder of one person will not bar an indictment for the murder of the other, where both were killed by the same act,26 and that an acquittal, under an indictment charging the defendant with having mixed arsenic with flour and having caused it to be administered to a certain woman with intent to kill her, is no bar to a subsequent indictment charging him with the same act in mixing the arsenic with the flour and causing it to be administered to a certain man with intent to kill him.27

An assault and battery committed in the presence of a court is also a contempt; and the guilty party may be punished for both offenses.28 So, an assault and battery may constitute an ingredient of a riot, in which case the offender may be convicted of both crimes.29

25 Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. 17; State v. Damon, 2 Tyler (Vt.) 387. See also note to 31 L. R. A. (N. S.) 693736.

26 People v. Majors, 65 Cal. 3 Pac. 597, 52 Am. Rep. 295.

138,
But

see Clem v. State, 42 Ind. 420, 13 Am. Rep. 369.

27 People v. Warren, 1 Park. Cr. C. (N. Y.) 338.

28 State v. Gardner, 72 N. Car. 379.

29 Skidmore v. Bricker, 77 I. 164; State v. Inness 53 Maine 536

CHAPTER X.

PARTIES TO CRIMES.

160. Classification.-At common law parties to crimes. constituting felonies are classified as follows: (1) Principals

in the first degree; (2) Principals in the second degree; (3) Accessories before the fact; (4) Accessories after the fact.

In treason1 and in misdemeanors2 there are no accessories. All who participate criminally in these offenses are guilty as principals.

§ 161. Principal in the first degree-Definition.—A principal in the first degree is a person who actually commits the crime himself, or commits it through an innocent agent. In the latter case, although absent, he is said to be constructively present.

The innocent agent may be animate or inanimate.

§ 162. Animate innocent agent as principal.-The agent who commits the act may be innocent because of ignorance, youthfulness or insanity. "If A procures B, an idiot or lunatic, to kill C, A is guilty of the murder as principal, and B is merely an instrument." "The method of killing is immaterial. Thus * in some cases a man shall be

*

*

said, in the judgment of the law, to kill one who is in truth actually killed by another, as where one incites a madman to kill himself or another."4 "A lets out a wild beast, or employs a madman to kill others, whereby any is killed, A is principal in this case, though absent, because the instrument can not be a principal." Thus, where an officer is endeavoring to arrest an insane person, and a third person frees the lunatic's hand from the grasp of the officer, thereby

14 Bl. Comm. 35; 1 Hale P. C. 612, 613; 2 Hawk. P. C., ch. 29, § 2; Reg. v. Clayton, 1 Car. & K. 128, Beale's Cases, 388; United States v. Burr, 4 Cranch (8 U. S.) 470 appendix.

2 Bl. Comm. 36; 1 Hale P. C. 613; 2 Hawk. P. C., ch. 29, §2; Stevens v. People, 67 Ill. 587; Wagner v. State, 43 Nebr. 1, 63 N. W. 05: State v. Stark, 63 Kans. 529, 66

Pac. 243, 54 L. R. A. 910, 88 Am.
St. 251; Bracewell v. State (Ga.
App.), 94 S. E. 91; State v. Gilbert,
107 S. Car. 443, 93 S. E. 125; Mc-
Daniels v. State, 185 Ind. 245, 113
N. E. 1004.

3 Russ. on Crimes 5.

42 Bish. New Crim. L. (8th ed.),

§ 635.

51 Hale P. C., ch. LV, Dalt. Cap. 108.