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omitting a special prohibition of a particular species of act, even though they thought the provision needless for the reason that all acts of that class were embraced in a more general prohibition found elsewhere. Where a statute forbidding a particular species of acts has for years existed along with a general provision impliedly embracing the same cases, there is danger in omitting the special provision, however needless it may be, lest an inference should be drawn from the omission, that the act was designed to be made no longer punishable. Where provisions of existing statutes have been thought unobjectionable in themselves, but useless because embraced in effect in other provisions of a more general character, they have, therefore, in many cases been retained in this draft; in the belief that the omission of them may more safely be made in the ultimate revision of the work, than at present. And it will be found that the bulk of the Code, in its present shape, may be materially reduced without impairing its clearness and efficiency, by a rigid exclusion of particular provisions which are capable of being combined in general ones, accompanied by some enactment which shall prevent the argument that because a former prohibition of an act was omitted from the Code, therefore it must be deemed the intent of the Legislature that it should no longer be punishable.
It is to be borne in mind, that the subjects of procedure and evidence in criminal cases, are excluded from the scope of the Penal Code; those topics being embraced in the Codes reported by the commissioners of practice and pleadings. The Penal Code relates chiefly to the enumeration and definition of crimes, and the designation of the kind and measure of punishment to be inflicted for each. The first two titles of the Code, embody some general principles relative to criminal responsibility, which are independent of the distinctions between offenses. The fifteen titles which follow, and which constitute the bulk
of the work, are occupied with provisions relative to the various crimes, separately considered. The eighteenth title contains some general provisions concerning the interpretation and application of the preceding portions of the Code.
With these explanations, the work is submitted for examination. As an aid to a critical examination of it, there is appended to this note a TABLE OF THE PRINCIPAL CRIMES HERETOFORE RECOGNIZED IN THE JURISPRUDENCE OF GREAT BRITAIN OR AMERICA. This table is not precisely an index to the Code, though it will serve as such in a measure. It is intended as a means of testing the completeness of the provisions reported. It mentions the various crimes described in works on penal law, usually considered authorities in this country. If a crime is provided for by the Code, reference is given to the place where the provision may be found. If no provision has been made, the reason for the omission is briefly indicated.
The Commissioners cordially desire that all competent friends of law amendment will contribute the aid of criticism and suggestion towards the future revision of the work.
DAVID DUDLEY FIELD.
WM. CURTIS NOYES.
ALEXANDER W. BRADFORD.
New York, March, 1864.
HERETOFORE RECOGNIZED IN THE
LAW OF GREAT BRITAIN OR AMERICA,
WHERE THEY ARE TREATED IN THE PENAL CODE, OR, WHY THEY ARE OMITTED FROM IT.
Abandonment of children.
This offense is covered by section 332 of the Penal Code.
This term is commonly used to designate taking a woman and compelling her to marry or to be defiled; accomplished by means of force used either at the taking, or at the marriage or defilement. This offense was made felony by Stat., 2 Hen. VII, ch. 2, and benefit of clergy was taken away by Stat., 39 Eliz., ch. 9.
This crime is made punishable in part by section 319 of the Code; but chiefly by sections 326 and 327.
Using means to procure abortion is covered by section 334.
Absence from church.
The omission to attend church for one month, was made indictable by statute, in England. See Stat., 23 Eliz., c. 1, § 5; 3 Jac. 1, c. 4; 2 Chitt. Cr. L., 20, note d. Similar statutes have at former times existed in this country.
No provisions enforcing attendance at church are introduced in the Code; though the right to attend is protected by sections 54, 55 and 56.
Accessories in felony are made punishable by section 28.
Administering poison. See Poison.
Adulterations of food, &c.
Are covered by sections 451, 452.
This is not criminally punishable by the English common law, though it is by the law of Scotland, and by the statutes of several of the United States.
In this state it has not been considered a subject of criminal punishment; and the question being a familiar one, and our existing rule well settled, the commissioners have not suggested any change.
False swearing in an affidavit is made perjury by section 150. Procuring another to make a false affidavit is subornation of perjury, by section 162.
The refusal of an officer to take and certify an affidavit, in a proper case, is covered by section 215.
Making an affidavit, or taking one in unauthorized cases, is covered by sections 181 and 182.
The refusal of an individual to make an affidavit is not made criminal, except so far as, under peculiar circumstances, it may constitute a criminal contempt of court, under section 201, subdivisions 4, 5 or 6. In general, the duty is left to be enforced by attachment or other appropriate civil remedy.
At common law, the fighting together of two or more persons, in some public place, to the terror of the people. It is said to be