Rex v. Smith


Felony and Misdemeanor

This was an appeal to the High Court upon a case stated by a Metropolitan magistrate.

 The Lord Chief Justice; This is one of the cases in which His Majesty’s judges, through no fault of their own, are unable to do justice and can but gloomily enforce the law and respectfully condemn the Legislature. The appellant, Mr. Smith, was passing peacefully along a London street when he observed a miscreant ripping the tyres of an unattended and stationary motor-car. A man of more than usual courage and determination, Mr. Smith seized the man and succeeded in detaining him by force until a police-constable arrived. The malefactor was duly prosecuted and punished for his offence; but, having, it appears, some knowledge of the law, he issued a counter-summons against Mr. Smith for assault, upon which Mr. Smith was convicted. Against this conviction Mr. Smith has appealed.

I am sorry to have to say that the magistrate was right and that Mr. Smith was properly convicted. Mr. Smith may well be surprised, for the citizen is frequently informed that it is the duty of all able-bodied persons to assist the officers of the law to the utmost of their powers in the prevention of crime and, in certain circumstances, the apprehension of the criminal. Unfortunately the important words in the sentence last spoken are the words, ‘in certain circumstances’, and they are the snare into which the gallant Mr. Smith has fallen.

Mr. Smith’s conviction rests upon the ancient but now, in substance, meaningless distinction between felony and misdemeanor, which ought to be abolished.

All indictable offences are either felonies or misdemeanors. A felony, at Common Law, was a crime so strongly deprecated by the State that, apart from any other punishment, it involved the forfeiture of the offender’s property. Lesser crimes were known as ‘Transgressions’ or ‘Trespasses’, and later ‘Misdemeanour’s’’, and these did not inevitably carry forfeiture. Statutes from time to time added new crimes to both categories. Originally all felonies (except petty larceny) were punished with death, but no misdemeanors. Forfeiture for felony, however, was abolished in 1870, and the death penalty is now practically restricted to the felony of murder (though I must warn Mr. Haddock, if he is in Court, that he may still be hanged for setting fire to a Royal Dockyard or to any ship in the Port of London). Thus the origins of the distinction have disappeared, and there appears to be no logical ground for its retention. Yet it survives.

Felonies, to particularize, include murder, suicide, manslaughter, burglary, housebreaking, embezzlement, larceny, and bigamy; while some of the better-known misdemeanors are perjury, conspiracy, fraud, libel, false pretences, riot, and assault.

It cannot even be said that all felonies are more repellent crimes than all misdemeanors; for it is a felony to steal a penny, but only a misdemeanor to defraud a man of a million pounds. Most of us would think that perjury, conspiracy, and criminal libel were offences at least as dangerous and detestable as a mild burglary or inadvertent act of bigamy. But the former are misdemeanors only and the latter felonies. Perjury, as the admirable Mr. Kenny has pointed out,’ may cause the death of an innocent person, yet is only a misdemeanor; while it is a felony to keep a horse-slaughterer’s yard without a licence. Embezzlement is a felony but fraud a misdemeanor. To carry off a young woman is sometimes one and sometimes the other.

If it were only an historical curiosity, like the Woolsack, which did not impede the flow of justice, I should not have much to say against this quaint old classification of offences. Unfortunately some practical consequences of importance do still proceed from it.

For example, the convicted felon loses any office or pension; he cannot vote for nor sit in Parliament, nor hold military or civil or ecclesiastical office until he has been pardoned or has worked out his sentence. ‘These disqualifications’ (I am again quoting the good Mr. Kenny) ‘are not entailed by any misdemeanor.’ So that if a Bishop, Colonel or Member of Parliament commits a burglary he wiII be deprived of his office; but if he is found guilty of perjury or fraud he may still, so far as the Common Law is concerned, continue to be a Bishop, Colonel, or Member of Parliament, as the case may be.

I now come to the strange but, to the appellant, vital distinction, which in the present case must govern this reluctant Court. Since felonies were at one time the most heinous of offences, the immediate apprehension of the felon was of paramount importance to the State; and in an age when the officers of justice were less numerous and well-equipped than they are to-day, wide powers of arrest were granted not only to the constable but to the private citizen. Any person- constable or citizen-who sees a felony committed not only may but must, so far as his powers permit, arrest the felon at once; and he may use any violence that may be necessary to do so. Further, if the felony has already been committed the law permits the private citizen to arrest another whom he suspects upon reasonable grounds to be guilty.

But in the case of a misdemeanor the Common Law was more cautious. Not even an eye-witness of a misdemeanor might arrest the offender without first obtaining a warrant from a magistrate; and that is still the law, apart from certain exceptions introduced by statute-as, for example, where a private citizen finds another signalling to a smuggling vessel, committing an offence against the Coinage Offences Act, 1861, or, upon certain conditions, the Malicious Damage Act, 186 I.

Now, to slash the tyres of a stationary motor-car is not a felony but a misdemeanor; nor is it covered by any of the statutory exceptions to the general rule, for private motor-cars were not imagined by the authors of the Malicious Damage Act, 1861.

At law, therefore, Mr. Smith was not entitled to seize the body of the miscreant. His proper course was to stand at a reasonable distance and deliver a moral address upon the iniquity of malicious damage. He might, I think, have added a warning that if the miscreant was not careful he would tell his mother; but even this might have made Mr. Smith liable to a summons for using abusive or threatening language.

I would add, for the general guidance of citizens like Mr. Smith who go about seeking to protect the lives and property of their fellow-citizens, the following rule of conduct: ‘Ignorance of the law excuses no man’; and, though there are vast areas of the law with which I am not familiar, the citizen is expected to know it all.

Mr. Smith, then, and those like him, must study the text-books upon criminal law until they have mastered the differences between felony and misdemeanor. If they are unable to commit them to memory they should carry upon their persons a list-or rather two lists, in parallel columns-of the various indictable offences, the felonies on one side and the misdemeanors on the other. On perceiving another citizen engaged in what appears to be a violent and unlawful act, they should not lay hands upon him until they have consulted their lists and assured themselves that the circumstances are such as to justify them in making an arrest. If after this precaution they are still in doubt as to the precise nature of the offence, or if they have mislaid their lists, the only proper course is to invite the assistance of the miscreant, who, ex hypothesi, should know better than any other citizen what class of offence he is committing.

A man who is found handling documents in an office after working-hours may be guilty of housebreaking, embezzlement, or larceny (which are felonies), or only of fraud or trespass (which are misdemeanors), or perhaps of forgery (which may be either one or the other); and before Mr. Smith takes the risk of arresting him the man should be asked to make his position clear. In-the present case Mr. Smith should have said, ‘Pardon me, sir, but in your opinion is your conduct felonious? Prima facie, I should say that it was covered by the Malicious Damage Act, 1861, but in the laws of England, as you know, there is many an unsuspected hiatus, and, unhappily, I have left my copy of the Statute Book at home. If you yourself are in any doubt, sir, the simplest course would be for you, first, to strike me on the nose and then to threaten to do it again; for I am entitled to arrest a person committing a breach of the peace in my presence and while there is danger that the peace may continue to be broken.’ If during this address the miscreant had made off, Mr. Smith would at least have put himself on the right side of the law. As it was, he neglected these simple precautions and he has been properly convicted of assault.

The appeal is dismissed.

A. P. HerbertRex v. Smith (Felony and Misdemeanor)

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