"Misdemeanour " is to be regarded as a negative expression, being applied to indictable crimes not falling within the class. of felonies.

In the year 1870 the Legislature struck at the root of the distinction we have been treating of; but the terms "felony " and "misdemeanour," 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, should thereafter cause any attainder or corruption of blood, or any forfeiture or escheat (t).

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 misdemeanours. The following are the most important:

(i) As to arrest.-It will suffice here to state generally that an arrest without warrant is justifiable in certain cases of supposed felony, where it would not be in cases of supposed misdemeanour (u).

(ii) As to the parties implicated. The distinction between principals and accessories is recognised only in felonies (w). (iii) As to the trial.-Misdemeanours may be tried upon an indictment, inquisition, or information; felonies upon the first two only.

The right of peremptory challenge to jurors is confined to cases where the prisoner is indicted for felony.

On minor points there is also a difference, e.g., the form of oath taken by the jury (a); again, in misdemeanour the defendant is not given in charge to the jury (y); and in felonies the prisoner must be present throughout the trial, while a case of misdemeanour may be tried although the accused be not present, if he have previously pleaded (z). In many cases of misdemeanour the person accused is entitled to

(t) 33 & 34 Vict. c. 23, s. 1.

(u) v. pp. 293–296.
(w) v. p. 25.

(x) v. p. 357.

(y) v. p. 358.

(z) Archbold, 169.

be released on bail while awaiting his trial, whereas this is not the case if the charge is one of felony (a).

(iv) As to the civil remedy.-As we have seen (b), the felony should be prosecuted before a civil action is commenced against the guilty person with reference to the same act; in misdemeanour there is no such necessity.

CHAPTER II.

ESSENTIALS OF A CRIME.

in order to ascertain who are and who are not capable of committing crime, it will be necessary to examine certain terms which are liable to confusion.

In the first place we must deal with those mental elements which occur in every case of crime, and the absence of which (except in a limited number of cases to which we will refer) excludes the act from the category of crimes, viz., Will and Criminal Intention or Mens rea. In dealing with these we must necessarily consider the external or physical facts which create criminal liability, i.e., Acts and their Consequences, and in relation to will and intention we must further consider Motive. All these five terms have received many definitions, and moreover are frequently used, even by lawyers, with somewhat different shades of meaning. It is perhaps safer, therefore, to attempt a broad explanation rather than definition.

The term Act denotes, strictly speaking, only such physical facts as follow immediately upon a determination of the will to effect them: Acts therefore are said to be willed. Consequences, on the other hand, are the results which follow as the effect of the act and to the attainment of which the act is directed; consequences, therefore, are said to be intended -i.e., aimed at. Thus if I strike a match, the act is the muscular movement of movement of striking to striking to which which my will is determined; the intended consequence is the ignition of the match. (The distinction between act and consequences is, however, frequently disregarded, and an act with its immediate consequences, e.g., the whole process of lighting the match, is spoken of as an act.) Since acts are willed, a man does an

act wilfully when he is a free agent and what is done arises from the spontaneous action of his will (c), when his act is done, not by accident or inadvertence, but so that his mind. goes with it (d). If the act be not willed, it is said to be involuntary and does not render its doer amenable to the criminal law. An omission to act may, similarly, be either wilful or involuntary.

Intention and Motive.-The term "intention" has reference to the effect which is aimed at by an act, either, as above illustrated, to the consequences, or to the purpose which will ultimately be effected, as, e.g., in the expression " Assault with intent to rob." (It may also have another looser meaning, as when a man says that he "intends" to do something tomorrow.) Intention must always be carefully distinguished from motive, which is the incentive to acts. Motive, speaking broadly, is a term applicable to any mental condition or consideration which induces us to particular conduct, as, for example, a mere feeling of hostility which induces one man to libel another, or the desire of winning a scholarship which induces a student to work. It is not correct to say that motive is immaterial in determining whether conduct is criminal. It is true that, if conduct is per se criminal, the fact that the motive was innocent is no defence; but in some cases, on the other hand, the presence or absence of a particular motive may determine the criminality of conduct (e); and, further, the presence or absence of motive may be a clue as to the existence of intention-thus if A. kills B., the presence or absence of motive may be a clue as to whether the killing was intended or unintended. Intent, however, is much more material than motive in determining the character of conduct, and the same conduct may or may not amount to a crime according to the intention. For example, A. takes a horse from the owner's stable without his consent. If he intend fraudulently to deprive the owner of the property and appropriate the horse to himself he is guilty of the crime

(c) Young Harston, In re, [1886] 31 C. D., at p. 175.

(d) R. v. Senior, [1899] 1 Q. B., at p. 290; 68 L. J. Q. B. 175.
(e) v. pp. 15, 149.

of larceny. If he intend to use it for a time and then return it, it is a mere trespass which is only a civil injury (f). It should be noted that, if there be present a criminal intention, the prisoner is not exculpated because the results of the steps which he takes to carry out that intention are other than those which he anticipated. For example, if A., intending to murder B., shoots at him, but kills C., the intention (i.e., to shoot B.) being criminal and felonious, A. is guilty of murder.

Malice. The law presumes that every person intends the natural consequences of his acts. If a man voluntarily does an act from which harm naturally arises he is deemed to intend harm (g). Malice, therefore, is deemed to exist whenever a wrongful act is done voluntarily without justification or excuse (h). This is sometimes termed malice in law or implied malice, to distinguish it from malice in fact or express malice, i.e., actual hostility or ill will, which may be a motive for conduct, and may have other effects which will be noted later (i).

To make a person a criminal he must as a general rule have a mens rea, i.e., some guilty or culpable condition of mind. Thus if I offer a forged note, not knowing it to be such and therefore not intending to defraud, I have committed no crime. But if I have such intention, this criminal intention. stamps my conduct with the character of crime. The criminal condition of mind necessary for any particular offence varies according to the rules of the common law or the statute relating to that offence, and which may require that an act in order to be criminal must have been done "maliciously," "feloniously," "fraudulently," or with or with some particular "intent." Generally it may be classed as

(i) Active—When the mind is actively or positively in fault, as where there is an intent to defraud, or

(f) R. v. Holloway, 2 C. & K. 942; 18 L. J. M. C. 60.

(g) R. v. Harvey, 2 B. & C., at p. 864.

(h) Bromage v. Prosser, 4 B. & C., at p. 255.

(i) v. p. 93.