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offences tend to create breaches of the peace. This proposition applies to the class of libels directed against individuals, not to obscene libels and the like, where the offence depends on the corruption of the public morals. Therefore the cornmon criminal law does not usually inquire, whether the charge made against an individual in a libel is true or false, --a question always vital in the civil suit for libel, - but, the tendency to disturb the public tranquillity being the same in both cases, the public offence is in both the same. This legal rule

, is somewhat modified by other doctrines, but not so as to impair it for the present illustration. Modern legislation likewise has, to a still further extent, permitted the truth of the libel to be given in evidence by the accused.?

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IV. Combinations to commit Private Injuries.

§ 437. In our discussion thus far in this chapter we have assumed, that the wrongful thing is done by one individual only. But many instances arise of numbers combining for wrong; and then the combination may be in itself criminal, even where the thing contemplated would not be criminal if actually performed by one. Because obviously two or more persons, united in skill and endeavor against one, may stand toward him on unfair ground; while if one of them alone had undertaken exactly the same thing, both would be equal. Therefore in the former instance a criminal liability is incurred, whether the thing agreed upon is accomplished or not; but not in the latter, even though the thing is actually


Cropp v. Tilney, Holt, 422; Commonwealth v. Clap, 4 Mass. 163, 168, 169; The State v. Burnham, 9 N. H. 34; People v. Croswell, 3 Johns. Cas. 336; Commonwealth v. Blanding, 3 Pick. 304; Rex v. Draper, 3 Smith, 391 ; The State v. Lehre, 2 Const. 809; Rex v. Halpin, 9 B. & C. 65.

* Commonwealth v. Bonner, 9 Met. 410; Barthelemy v. People, 2 Hill, N Y. 248; The State v. White, 7 Ired. 180; People v. Croswell, 3 Johns. Cas. 336; Rex v. Burdett, 3 B. & Ald. 717, 4 B. & Ald. 95.

done. This combination is called conspiracy.? The offence is not confined to injuries to individuals; but it extends also to those injuries which concern directly the public. We shall have occasion to travel carefully over this ground in our next volume; and it will not therefore be wise to proceed further with the topic here.

$ 438. There is another offence, known in the ancient books as witchcraft, which may be mentioned in this connection. Of offenders of this nature there are said to be three kinds, first, conjurers, who by force of certain magic words endeavor to raise the devil, and compel him to execute their commands; secondly, witches, who by way of friendly conference are said to bargain with an evil spirit to do what they desire of him; thirdly, sorcerers or charmers, who, by the use of certain superstitious forms of words, or by means of images or other odd representations of persons or things, &c., are said to produce strange effects, above the ordinary

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* Twitchell v. Commonwealth, 9 Barr, 211, 212; Rex v. Orbell, 6 Mod. 42; Rex r. Macarty, 2 East P. C. 823, 6 Mod. 301, 2 Ld. Raym. 1179 ; 2 East P. C. 824; People v. Stone, 9 Wend. 182; People v. Babcock, 7 Johns. 201 ; Commonwealth v. Warren, 6 Mass. 72; Anderson v. Commonweath, 5 Rand. 627; The State v. Burnham, 15 N. H. 396; The State v. Murphy, 6 Ala. 765; Commonwealth v. Judd, 2 Mass. 329 ; Lambert v. People, 7 Cow. 166, 9 Cow. 578; Commonwealth v. Hunt, 4 Met. 111, 131 ; The State v. Rowley, 12 Conn. 101 ; Sydserff v. Reg. 11 Q. B. 245, 12 Jur. 418; Rex 4. Hilbers, 2 Chit. 163; Commonwealth v. Ward, 1 Mass. 473; Patten v. Gurney, 17 Mass. 182, 184; Bean v. Bean, 12 Mass. 20, 21; Commonwealth . Eastman, 1 Cush. 189; Rhoads v. Commonwealth, 3 Harris, Pa. 272; People r. Fisher, 14 Wend. 9 ; Commonwealth v. Ridgway, 2 Ashm. 247; Rex v. Cope, 1 Stra. 144; Reg. v. Gompertz, 9 Q. B. 824; Mimin v. Commonwealth, 5 Watts & S. 461; Commonwealth v. Tibbetts, 2 Mass. 536 ; Reg. v. Best, 6 Mod. 137, 185, 2 Ld. Raym. 1167, Holt, 151; Timberley v. Childe, i Sid. 68; Rex v. Armstrong, 1 Vent. 304; The State v. Buchanan, 5 Har. & J. 317 ; Rex v. Worrall, Skin. 108; Reg. v. Blacket, 7 Mod. 39; The State v. De Witt, 2 Hill, S. C. 282. Contra, The State v. Rickey, 4 Halst. 293, 300. ? And see ante, § 313.

course of nature.” 1 This offence appears to have been a misdemeanor at the common law ;2 but, by Stat. 1, Jac. 1, c. 12, it was elevated to a felony.3 Belief in the existence of the thing, called witchcraft, having become obsolete in the community, later English legislation, not in force here, abolished the crime of real witchcraft, and created another of falsely pretending to it. In this country, witchcraft is in effect no offence; because its existence is not believed. But if the opinion should again become general, that spirits hold intercourse with mortals, and have such power over them as to render conspiracies between the embodied and disembodied to the injury of their victims practicable, no reason appears why such conspiracies would not be indictable by force of the common law. There might be a difficulty in seizing and bringing to trial and punishment the rogues out of the flesh, yet it would furnish no reason why those in the flesh should escape.

V. Protection to the Louer Animals.

$ 439. Man has always held in subjection the lower animals, to be used or destroyed at will, for his advantage or pleasure. The right to take the life of these animals, and to make property of them, includes all other rights which concern them; and therefore the common law recognizes as indictable no wrong, and punishes no act of cruelty, which they may suffer, however wanton or unnecessary. And so

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11 Hawk. P. C. 6th ed. c. 3, § 1. For interesting matter on witchcraft, see Smith's case, 2 Howell St. Tr. 1049; The Essex Witches' case, 4 Howell St. Tr. 817; The Suffolk Witches' case, 6 Howell St. Tr. 647; The Devon Witches' case, 8 Howell St. Tr. 1017; The Trial of Witches, before Sir Matthew Hale, bound up among other papers with Jacob's Supp. to IIale P. C.

? Ib. § 2. But see 1 Hale P. C. 429.
3 1 Hawk. P. C. 6th ed. § 4.
41 East P. C. 5.


malicious mischief, even under the older English statutes, and under some American ones, as well as at the common law, cannot be committed on any animal by reason of malice against it, but only by reason of malice against its owner. A learned judge however once observed, that “cruelty to a domestic animal has, in some cases, been held to change what otherwise would have been a simple trespass into a criminal offence;"2 and observations have fallen from other judges tending to the same meaning: But we cannot find in the common law itself any general doctrine of this nature; though perhaps cruelty to such animals might enter into the consideration, where an act was sought to be made indictable as tending to corrupt the public morals, and the like. So cruelty to animals is properly made a statutory offence in some, perhaps all, of the States.

· The State v. Pierce, 7 Ala. 728; The State v. Wilcox, 3 Yerg. 278; The State v. Jackson, 12 Ired. 329; Rex v. Austen, Russ. & Ry. 490; The State v. Latham, 13 Ired. 33 ; Rex v. Pearce, 1 Leach, 4th ed. 527, 2 East P. C. 1072; Rex v. Kean, 2 East P. C. 1073, 1 Leach, 4th ed. 527, note; Reg: r. Ranger, 2 East P. C. 1074; Rex v. Shepherd, 1 Leach, 4th ed. 539, 2 East P. C. 1073. Otherwise under the present English statute, Reg. v. Tivey, 1 Car. & K. 704.

· Beardsley, C. J., in Kilpatrick v. People, 5 Denio, 277, 279.
% Commonwealth v. Tilton, 8 Met. 232, 234.
* Ante, $ 376 et seq.

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