ought to repress; in other words, the same act may be both a tort and a crime. Thus a forcible entry upon land, or an assault, is clearly indictable; it will as clearly give to the injured party a remedy by action. Again, in many cases proceedings may be taken against a libeller either by indictment or by action. An offence is committed against the public, whenever the libel has a tendency to cause a breach of the peace. A remedy by action is also accorded to the plaintiff to enable him to vindicate his character and to obtain compensation for the injury which he has sustained. If any person has been injured by a wrongful act which is also a misdemeanour, he has a civil remedy, which he may pursue or not as he thinks fit, and whether the State prosecutes the offender or not. But if the wrongful act is a felony as well as a tort, the person against whom it was committed must wait and let the State take action first, if it wishes. He has a cause of action, but his remedy is suspended so long as the wrong-doer has not been prosecuted or a reasonable excuse shown for his not having been prosecuted. If no such excuse can be shown, any action in which damages are claimed for a felonious act will be stayed until the defendant has been prosecuted. But the employer or the trustee in bankruptcy of the person upon whom the felony was committed is under no duty to prosecute, and can therefore pursue his civil remedy as he pleases.2 Whatever the person injured chooses to do-whether he sues for damages or not-the State will take its own independent course, and prosecute or not prosecute as the interests of the community may demand. A plaintiff may always abandon civil proceedings, if he wishes. The King alone can pardon a criminal, and such pardon will not affect civil proceedings; for the King cannot deprive a plaintiff of any cause of action vested in him. On the other hand, the fact that a plaintiff abandons or settles a civil action in no way prevents the Crown from continuing the prosecution. Any 1 Smith and wife v. Selwyn, [1914] 3 K. B. 98; Carlisle v. Orr (No. 2), [1918] 2 Ir. R. 442. That the defendant is out of jurisdiction would be a reasonable excuse: per Kennedy, L. J., [1914] 3 K. B. at p. 103. Ex parte Ball, In re Shepherd (1879), 10 Ch. D. 667; Appleby v. Franklin (1885), 17 Q. B. D. 93. 3 Except in the case of a penal action, which is really a quasi-criminal proceeding: 18 Eliz. c. 5, post, pp. 209, 952. 1 attempt by a private prosecutor to compound criminal proceedings for felony already commenced is in itself a misdemeanour.1 On the other hand a crime does not necessarily involve a tort. A crime may be committed, though no individual is injured. Thus, if A. unsuccessfully attempts to obtain money from B. by false pretences or forges B.'s name so clumsily that no one is deceived by it, in both cases A. has committed a crime; yet B. has no cause of action against him, for he has suffered no damage. Again, to store gunpowder or other explosive in large quantities in a town or in close proximity to a public highway is a crime, whether an explosion takes place or not. So, knowingly to send to market for sale meat which is unfit for human food is a crime, even though no one buys it.3 4 Generally speaking, the mere breach of a contract is no crime. Thus, in R. v. Wheatly it was held to be no crime to sell beer short of the just measure; Lord Mansfield, C. J., pointed out that the alleged offence was, in truth, only "an inconvenience and injury to a private person" against which he might have guarded by due caution. "The selling of an unsound horse as and for a sound one is not indictable; the buyer should be more upon his guard." To be indictable the offence must be "one that affects the public." Nevertheless there are cases in which a breach of contract may amount to a crime both at common law and by statute. Thus, if a man made a contract by which he undertook to supply the necessaries of life to a child or to a person who was imbecile or so infirm as to be unable to help himself, and neglected to perform his contract and thus caused the death of such child or person, this culpable omission would be a crime—either murder or manslaughter according to the circumstances. So, to sell for human consumption meat unfit for the food of man would be no doubt a breach of contract; it is also a misdemeanour both at common law and by statute. The following acts have been made criminal offences by statute 7:- 1 See post, p. 209. 2 R. v. Lister (1857), Dearsl. & B. 209. 3 Shillito v. Thompson (1875), 1 Q. B. D. 12, 14. (1761), 2 Burr. at p. 1127. 5 See R. v. Instan, [1893] 1 Q. B. 450. See the Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 116-119, and the Adulteration of Food, Drugs, &c., Act, 1872 (35 & 36 Vict. c. 74), ss. 2 and 3. 7 Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), ss. 4 and 5. others who have undertaken to supply gas or water, alone or with others wilfully and maliciously breaks his contract of service, knowing or having reasonable cause to believe that the probable consequence will be to deprive the inhabitants wholly or to a great extent of gas or water. Where a person wilfully and maliciously breaks his contract of service, knowing or having reason to believe that the probable consequence will be to endanger human life or cause serious bodily injury, or expose valuable property to destruction or serious injury. In some cases the same transaction may be a crime, a tort and also a breach of contract. Thus, if a lease contains the usual covenants by the tenant that he will keep the premises in repair and yield them up at the end of the term in good repair, and the tenant on the determination of his tenancy wilfully breaks the windows and doors and makes a hole in the roof of the demised premises, he commits a breach of covenant; he also commits the tort of waste and is guilty of the misdemeanour of maliciously injuring property. A crime, then, is the breach of a duty imposed by law for the benefit of the community at large-the breach of a duty owed to the public, and therefore a wrong done to the public. And a wrong will be done to the public, not merely where the offence causes damage or inconvenience, but also where it is of a public evil example, such as the exhibition or sale of obscene pictures and literature or any other act of public indecency. So, too, any act calculated to endanger human life or to provoke a breach of the peace will be a crime, although no death or breach of the peace should result. Again, a mere omission may sometimes be a crime; as where a man neglects his duty and thereby causes injury to another or serious inconvenience to the public. Thus, in order to constitute wilful obstruction of a highway within section 72 of the Highway Act, 1835, it is not necessary that there should be any act of commission; the offence will be complete, if the person whose duty it is to remove an obstruction caused by an accident or by some other person omits to do so after notice.2 Again, a signalman, who causes a collision between two trains by neglecting to alter the signals, may be guilty of manslaughter. So, it is an 1 5 & 6 Will. IV. c. 50. 2 Gully v. Smith (1883), 12 Q. B. D. 121. indictable offence for a parent who has the means of supporting his child to neglect to provide sufficient food, clothing and shelter for it whilst it is of tender years and unable to take care of itself. It is not necessary to constitute a crime that the act committed should be in itself vicious or sinful; it is enough that the State has thought fit to forbid it. Many acts which are not in themselves morally reprehensible have for various reasons been forbidden by the State. As a rule, when the State forbids an act, it expressly declares a punishment for the offender; but if no such punishment be stated in the statute, disobedience to it is nevertheless punishable as a misdemeanour. "Wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable by way of indictment for his contempt of the statute,1 unless such method of proceeding do manifestly appear to be excluded by it." 2 But if a statute creates a new offence and in the same section provides a method of procedure other than by indictment in case of disobedience, the method prescribed in the section must be followed, and the person aggrieved cannot proceed by way of indictment. 1 R. v. Buchanan (1846), 8 Q. B. 883. CHAPTER II. THE ELEMENTS OF A CRIME. To constitute a crime there must, as a rule, be both a guilty mind and a criminal act. The State does not punish a mere intention, however criminal, unless it is accompanied by some external criminal act; nor, speaking generally, is any act punishable unless it is done with a criminal intention. This is usually expressed in the maxim, Actus non facit reum nisi mens sit rea; it is equally true that mens rea is insufficient unless it be followed by some criminal act. "The intent and the act must concur to constitute the crime." 2 I. CRIMINAL ACT OR OMISSION. In the first place the offender must be guilty of some criminal conduct. He must do some act which it is a crime for him to do, or he must omit to do some act which it is a crime for him not to do. In most cases the criminal does some act; but the number of crimes of omission has much increased during the last hundred years. It is, however, only where there is a legal duty to act that a mere omission to act is criminal; thus it is no crime to stand by and let a man drown. 3 A bare intent to commit a crime is not indictable; some outward act must be superadded to constitute a crime. "The imagination of the mind to do wrong without an act done is not punishable in our law." 4 It is true that "compassing the King's death" is treason; but such "compassing" must be made manifest by some overt act.5 13 Inst. 107; as to mens rea, see post, p. 112. Per Lord Kenyon, C. J., in Fowler v. Padget (1798), 7 T. R. at p. 514; and see the judgment of Lord Mansfield, C. J., in R. v. Scofield (1784), Cald. S. C. at p. 403. See, for instance, the provisions which make it criminal to neglect, abandon or expose children, ante, p. 106, and post, pp. 310-313. Argument, Hales v. Petit (1562), Plowd. 259 a; and see the judgments of Lord Mansfield, C. J., and Lord Kenyon, C. J., cited above. See post, pp. 145, 147. |