election in methods of dealing with him.

Perhaps, in a

particular instance, the law has no way of punishing all his act, in all its enormity; but, disregarding a part of it, has a ready way against him for the residue. For example, if a son knows that his father has made, through peculiar affection, a will giving him a large preference over the other children; and he meditates a series of frauds which he. fears will lead, on their being detected, to the cancelling of the will; to prevent which, and to obtain immediate possession of the property, he kills in cold blood this paternal benefactor; he can be indicted only for murder,-a crime which is constituted by any premeditated and unlawful voluntary killing of a human being. We will now let the outer circle A B C, in the figure here exhibited, represent his whole moral crime;

B

D

while the inner circle, ADE, shows all for which he can be made legally answerable. If the son were also a serAvant, the English law, as it stood when

this country was settled, not as it stands now with us,2 would admit of a circle drawn between these two; that is, he

might be held for petit treason, which is murder aggravated by the single circumstance of the person whose life is taken being the master or husband of the offender; but the other aggravating matter supposed, could not be included.

1 That a man may commit more than a single offence in one transaction; when a conviction for one will sometimes bar proceedings against him for the others, and sometimes not, see The State v. Standifer, 5 Port. 523; The State v. Damon, 2 Tyler, 387; The State v. Fife, 1 Bailey, 1; Hinkle v. Commonwealth, 4 Dana, 518; Smith v. Commonwealth, 7 Grat. 593; The State v. Fayetteville, 2 Murph. 371; Rex v. Champneys, 2 Moody & R. 26, 2 Lewin, 52; The State v. Johnson, 12 Ala. 840; Halcomb v. Cornish, 8 Conn. 375; The State v. Squires, 11 N. H. 37; Commonwealth v. Tuck, 20 Pick. 356; Josslyn v. Commonwealth, 6 Met. 236; The State v. Thurston, 2 McMullan, 382; Reg. v. Brettel, Car. & M. 609; Rex v. Jones, 4 Car. & P. 217; Lorton r. The State, 7 Misso. 55. And see post, § 536.

2 Ante, § 357, 447.

31 Hawk. P. C. 6th ed. c. 32, § 1, 2.

§ 531. This idea may be carried much further. Suppose an ordinary case of murder, committed by an intentional blow. Let the outer circle A B C represent it. If we ex-. clude from our view the element ofud bağlam you wbent a malice aforethought, we have man-it woma slaughter, which may be symbolizedzevin

by the next circle, ADE. But coming lower down, there was, in the

same transaction, an assault with in-d

F

is

E

G

tent to kill, represented by the circle AFG. There was, still lower, a battery, figured in the circle AHI; and there was an assault, indicated by A KL. Or, developing the proposition in another form, a man may be guilty of arson in burning a dwelling-house wherein a human being is consumed, and thus be guilty also, by the same act, of murder. The murder will be represented by a larger circle, and the arson by a smaller, within it; as shown in either this figure or the last.2

§ 532. Sometimes two or more offences have one or more elements in common. A case of this sort is here shown: the circle A CBF representing one offence, and the circle AEBD another, while between the two arcs, A E B and AFB, lies what is common to both. And a man may, in one transaction, have done what is represented by both circles. Or we may suppose these circles so drawn,

E

that their respective circumferences will merely touch each other, neither one including any part of the other; they will still, it appears, represent what may, in some peculiar circumstances, be accomplished of crime by a single volition, or at all events in a single transaction.*

1 The State v. Cooper, 1 Green, N. J. 361.

See post, § 551.

3 For an instance in point, see Reg. v. Paice, 1 Car. & K. 73.

4 Ante, § 530 and note; post, § 534, 537.

$533. Then, again, the person may have done not only what both circles represent, but more also. Thus, here, the

E

G

B

outer circle GCHD may symbolize what he did; and the two inner circles, ACBF and AEBD, two offences carved by the law out of the transaction; while there is no offence, known in law, corresponding with the outer circle; in other words covering his whole moral guilt. Again; the thing done may be an exact and well-defined erime, precisely represented by the outer circle G C HD; and still there may be included therein two other offences, shown by the two inner circles. A E B F will then exhibit a part of the act which belongs to each of three separate and distinct crimes.

B

H

E

§ 534. Let us look at but a single other illustration. The outer circle, A B C, may picture to our minds a particular crime; and the three inner circles, A D F, BDE, and CE F, three distinct crimes, embraced within it. No one of the three extends into any other one; yet, together, they do not cover the whole ground of the larger. And so, for example, a man may be a common seller of intoxicating liquor without license, contrary to a statute making this punishable; and, in carrying on the business of a common seller, he may be guilty of specific sales against another statute, which makes each particular sale an offence.1 Or we may suppose, that, while the outer circle represents what the man does, the law has no corresponding offence; but has three distinct offences, lying within the trans

1 The State v. Maher, 35 Maine, 225; The State v. Coombs, 32 Maine, 529. And see The State v. Bugbee, 22 Vt. 32; Commonwealth v. Perley, 2 Cush. 559; Rex v. Champneys, 2 Moody & R. 26, Lewin, 52; Hinkle v. Commonwealth, 4 Dana, 518.

action, while neither of them includes any thing which is also within another.1

§531 a. These representations might be varied in ways innumerable. But what is here given will impress the reader with the general idea. And this appearance of the law cannot be avoided by any skill of scientific arrangement, or by legislation. Because human actions are diversified to the extent, that no two acts, of the past or the present, viewed in reference to all their surroundings, and the inner motives prompting to them, are entirely alike. And no single future act, viewed in reference to all these things, can be foreseen. The consequence is, that the law, statutory and common, must forbid things in terms broad enough to comprehend an infinite variety of shades and particular qualities of wrong doing. The inhibition must also be specific, descending somewhat to the minute. When it thus descends, it, of course, can include only a part of the wrong things possible to be done. Then must follow another somewhat minute direction, then another, then another; until the lawgiver thinks he has gone far enough. Each one of these particular directions is a circle, according to the foregoing figures; that is, it is a specific of fence. And what is thus said applies, as mentioned already, to the common law as well as to the statutory. The common law would be the perfection of human folly, instead of meriting the praise bestowed in days past upon it, as the perfection of human wisdom, if it attempted to divide the indictable into such classes of things, that no one transaction would fall into more than a single class.

$535. Some single offences may be committed in different ways. For example, a statute provided a punishment for "every person who shall buy, receive, or aid in the conceal

See Toney v. The State, 13 Misso. 455; Wilson v. Commonwealth, 12 B. Monr. 2; Smith v. Commonwealth, 7 Grat. 593; The State v. Fayetteville, 2 Murph, 371; The State v. Fife, 1 Bailey, 1; The State v. Standifer, 5 Port. 523; ante, § 532.

ment of, any stolen goods, knowing the same to be stolen;" and the construction was, that it described only one offence," the guilt of which might be incurred by either buying, or receiving, or aiding in the concealment of, the goods; and, if an indictment alleged all three of these together, no objection could be taken to it as multifarious, though it might equally well have charged but one. On a principle somewhat similar, we have seen, that frequently a man may be indicted for the same thing, either under a statute, or at the common law.

§ 535 a. The importance of understanding the various divisions of criminal things, and understanding the operation of such divisions on many questions to be discussed in this work, and in the work on Criminal Procedure, sufficiently justifies the foregoing minuteness of detail.

II. The Consequences of the Division.

$536. It is the general rule, that a criminal person may be holden for any crime, of whatever nature, which can be legally carved out of his act. He is not to elect, but the prosecutor is. If the evidence at the trial shows, that he is guilty of a higher offence than he stands indicted for, or of a lower one, or of one differing in nature, whether existing under statutes or at the common law, he cannot be heard to complain; the question being, whether it shows him to be

1 Stevens v. Commonwealth, 6 Met. 241; ante, § 148; The State v. Slocum, 8 Blackf. 315. And see Reg. v. Bird, 2 Eng. L. & Eq. 448, 2 Den. C. C. 94; Commonwealth v. Tuck, 20 Pick. 356; The State v. Woodward, 25 Vt. 616. But see Miller v. The State, 5 How. Missis. 250.

Ante, § 93, 100.

Cole v. The State, 5 Eng. 318, 322; Reg. v. White, 9 Car. & P. 282; Reg. v. Franklin, 6 Mod. 220; Reg. v. Brightside Bierlow, 4 New Sess. Cas. 47, 14 Jur. 174; The State v. Jesse, 3 Dev. & Bat. 98; Simpson v. The State, 10 Yerg. 525; United States v. Grundy, 3 Cranch, 337, and the cases cited in the remaining notes to this section.