Abolition of forfeiture. Incidents of felonies and misdemeanors contrasted. "Misdemeanor" is to be regarded as a negative expression; being applied to indictable crimes not falling within the class of felonies (d). In a wide and general sense, the term is also used synonymously with "crime." Recently (1870) 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 offences, 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 felony, where it would not be in cases of supposed misdemeanor (ƒ). 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. (d) "Their general name-misdemeanors-bad behaviour-happily describes their general character. The principal offences 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 shew that though, in some respects, they are dissimilar, the essence of all these offences is the same. . . . Each of these offences 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 wilful act or omission."-Fitz. St. 145. (e) 33 & 34 Vict. c. 23, s. 1. (f) v. p. 312 et seq. 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 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. iii. As to the civil remedy.-As we have seen (j), 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. p. 384. (h) v. p. 385. (8th Report of the Commissioners on Criminal Law, p. 143; 1 Chitty, Cr. L. 532; Arch. 155; v. also p. 362. () v. p. 3. Will. Intention. CHAPTER III. ESSENTIALS OF A CRIME. In order to ascertain who are and who are not capable 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. 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. Intention is the "fixing the mind upon the act, and thinking of it as of one which will be performed when the time comes" (7), and when the time comes (if it ever does) the act is willed. The willing may succeed (k) Fitz. St. 77. the intention instantaneously, or years may intervene between the formation of the intention and the exercise of the will. An example will explain the relation of the two terms more clearly. A. hates B. In consequence of this hatred A., on meeting B., shoots him dead. Here A. makes up his mind to shoot B. when he meets him; up to this point, as long as the two are. separated, A.'s intention only is formed. He meets B. in the road, and carries out his design or intention by pulling the trigger. Now he wills the act; that is, he wishes it in such a way as to cause the motion of his arm and finger (m). The Motive. In this example a third element appears. motive of the act is the deadly hatred. Motive may be defined as "that which incites and stimulates to action." It may serve as a clue to the intention; but it is the intention which determines the quality, criminal or innocent, of the act (n). criminal in tention. So much for intention generally. But to make a Malice, or person a criminal, the intention must be a state of mind forbidden by the law. I utter a forged note, not knowing it to be such, and therefore not intending to defraud. No crime is committed. But if I have such intention, this criminal intention stamps the act with the character of crime (o). The guilty state of mind, or criminal intention, is generally known by the term "Malice;" a term which is truly a legal enigma, on account of the many and conflicting senses in which it is used. As synonymous with criminal intention, it is thus necessary to the legal conception of crime. To secure a conviction, as a general rule, malice of this (m) "Though usually both intention and will are found in an act, either or both may be absent. Both are wanting when a man in a convulsive fit strikes and kills another. Intention is absent in the case of an infant."— Malice, active or passive. Malice, express or implied. kind must be directly proved. But when the law expressly declares an act to be criminal, the question of intention or malice need not be considered; at least, except by the judge in estimating the amount of punishment (p). Again, in some cases, this intention is presumed from a circumstance, and it lies on the accused to shew that his intention was innocent, e.g., in the case of possession of recently stolen goods (q). This malice is found not only in cases I. Where the mind is actively or positively in fault, as where there is a deliberate design to defraud, but also II. Where the mind is passively or negatively to blame, that is, where there is culpable or criminal inattention or negligence. A common example of this is manslaughter by a surgeon who has shewn gross incompetence in the treatment of the deceased. But here the criminality consists in the wilfully incurring the risk of causing loss or suffering to others (r). So that, in fact, the malice is only traced one stage further back. An extreme case of this negative malice is where there is merely the absence of a thought which ought to have been there, as in the non-repair of roads through forgetfulness. It is usual to lay down that malice is either 1. Express, or in fact, as where a person with a deliberate mind and formed design kills another. 2. Implied, or in law, as where one wilfully poisons another, though no particular enmity can be proved; |