Its cffect.

S2. No act or omission subsequent to the day upon which this Code shall take effect as a law, shall be deemed criminal or punishable, except as prescribed or authorized by this Code, or by some of the statutes which it specifies as continuing in force. Any act or neglect committed prior to that day may be inquired of, prosecuted and punished in the same manner as if this Code had not been passed.

Abolition of Common Law Offenses.-This section abolishes all common law offenses. Such appears to have been clearly the intention of the legislature. The act appointing the commissioners prescribes that "the Penal Code must define all the crimes for which persons can be punished."

Effect of the Code upon Anterior Offenses. In so far as this Code declares acts criminal which heretofore have not been so regarded, or increases the severity or changes the kind of punishment inflicted for a crime defined by our former laws, the familiar provision of the Federal Constitution prohibiting ex post facto laws, forbids that it be made applicable to acts committed before it takes effect. (U. S. Const., art. 1, § 10, sub. 1; Calder v. Bull, 3 Dall., 386; Fletcher v. Peck, 6 Cr. 87, 138.) In so far as it diminishes the severity of the punishment, by prescribing a less amount or duration of penalty, of the same kind with that inflicted under the former law, there may be no constitutional reason to prevent its being made applicable to all offenses, irrespective of the date of commission. (Hartung v. People, 22 N. Y., 95; Commonwealth v. Mott, 21 Pick., 492; Keene v. State, 3 Chandl., 109.) Ameliorations of punishment introduced by statute are often expressly extended to prior offenses. (See 2 Rev. Stat., 779, § 6; Laws of 1861, ch. 303, § 3; Mass. Gen. Stat., 880, § 5; Rev. Stat. of Wisc., 757, § 3.) No natural right arises, however, in behalf of an offender, to claim the benefit of a subsequent statute mitigating the penalty for offenses like his own; though clemency readily awards it to him. Convenience and simplicity in the administration of penal justice should control upon this point. The commissioners are of opinion that any attempt by general words to render such mitigations of punishment as are introduced by the Code, applicable to antecedent offenses, is calculated to raise nice and embarrassing questions as to whether a given modification is a mitigation or not. They observe that it has been held that the judiciary cannot determine whether a provision that no person convicted of a capital offense

shall be executed until after a year's confinement, nor then
except upon special warrant from the governor - is or is
not less severe than a former law imposing absolutely
the punishment of death. (Hartung v. People, 22 N. Y.,
95, 106.) Also that a substitution of imprisonment not
exceeding seven years, for whipping, has been held not
an increase of punishment. (Strong v. State, 1 Blackf.,
193; Herber v. State, 7 Tex., 69.) They therefore recom-
mend that, as it is necessary to retain the former system
of prohibitions and penalties to a great extent, as respects
acts already committed, it be retained complete.

Should it be thought desirable to give those whose
offenses were committed prior to the Code, the benefit
of any ameliorations of punishment introduced, the
courts might be relieved of weighing the comparative
severity of penalties, by a provision entitling a person
convicted, after the Code, of an offense committed
before it took effect, the right to elect, at the time of
sentence being pronounced, the punishment prescribed
by the former law, instead of that authorized by the new.
The commissioners, however, deem such a provision
inexpedient.

"Crime ་ and pub

$ 3. A crime or public offense is an act or omission forbidden by law, and to which is annexed, upon con- lic offense,'

viction, either of the following punishments:

1. Death;

2. Imprisonment;

3. Fine;

4. Removal from office; or,

5. Disqualification to hold and enjoy any office of honor, trust, or profit under this state.

Rep. Code Cr. Pro., 2, § 3.

"misde

The use of the terms "crime," "felony,"
meanor and offense," is far from uniform even among
legal writers. In addition to the definition given by Mr.
Livingston (and referred to Rep. Code Cr. Pro., 2, note),
the following may be mentioned:

"A crime, or misdemeanor," says Blackstone, “is an
act committed or omitted in violation of a public law,
either forbidding or commanding it." "Crimes and mis-
demeanors, properly speaking, are synonymous terms;
though in common usage, the word 'crimes' is made to
denote such offenses as are of a deeper and more atro-
cious dye."

defined.

19

Crimes, how

divided.

"Misdemeanor," says Christian, "is generally used in contradiction to felony; and misdemeanors comprehend all indictable offenses, which do not amount to felony." (Note to 4 Bl. Comm., 5.)

66

"Misdemeanor," says Chitty, means every offense inferior to felony, but punishable by indictment, or by particular prescribed proceedings. The term 'offense' is usually understood to be a crime not indictable, but punishable summarily, or by the forfeiture of a penalty." (1 Gen. Pr., 14.)

"A crime," says Bell, "may be defined to be any act done in violation of those duties which an individual owes to the community, and for a breach of which the law has provided that the offender shall make satisfaction to the public." (Dict. L. of Scot., tit. Crime.)

Bishop defines crimes as "those wrongs which the government notices as injurious to the public, and punishes in what is called a criminal proceeding, in its own name (1 Cr. L., § 43.)

"The word crime," says Chief Justice SAVAGE, of our own State, speaking of the clause in the Federal Constitution which provides for the extradition of persons charged with treason, felony, or other crime, "is synonymous with misdemeanor, and includes every offense below felony punished by indictment as an offense against the public." (Matter of Clark, 9 Wend., 212, 222.)

"The term misdemeanor," says the same judge, in another case, "is used in contradistinction to felony, and comprehends all indictable offenses which do not amount to felony." (Son v. People, 12 Wend., 314.)

The Revised Statutes of this State, have employed the terms "crime" and "offense" as equivalent to each other, and as denoting "any offense for which any criminal punishment may by law be inflicted" (2 Rev. Stat., 702, § 22); and have defined "felony" as an offense punishable by death or imprisonment in State prison.

The commissioners have based their definitions upon the usage which has grown up in this State under the Revised Statutes; employing "crime" and "offense" in the extensive signification, and confining "felony" and "misdemeanor" to denote the classes into which crimes are divided. (See also Rep. Code of Cr. Pro., 3, § 5, note.)

S4. Crimes are divided into

1. Felonies;

2. Misdemeanors.

shall be executed until after a year's confinement, nor then
except upon special warrant from the governor is or is
not less severe than a former law imposing absolutely
the punishment of death. (Hartung v. People, 22 N. Y.,
95, 106.) Also that a substitution of imprisonment not
exceeding seven years, for whipping, has been held not
an increase of punishment. (Strong v. State, 1 Blackf.,
193; Herber v. State, 7 Tex., 69.) They therefore recom-
mend that, as it is necessary to retain the former system
of prohibitions and penalties to a great extent, as respects
acts already committed, it be retained complete.

Should it be thought desirable to give those whose
offenses were committed prior to the Code, the benefit
of any ameliorations of punishment introduced, the
courts might be relieved of weighing the comparative
severity of penalties, by a provision entitling a person
convicted, after the Code, of an offense committed
before it took effect, the right to elect, at the time of
sentence being pronounced, the punishment prescribed
by the former law, instead of that authorized by the new.
The commissioners, however, deem such a provision
inexpedient.

"Crime" and pub

$ 3. A crime or public offense is an act or omission forbidden by law, and to which is annexed, upon con- lic offense," viction, either of the following punishments:

1. Death;

2. Imprisonment;

3. Fine;

4. Removal from office; or,

5. Disqualification to hold and enjoy any office of honor, trust, or profit under this state.

Rep. Code Cr. Pro., 2, § 3.

The use of the terms "crime," "felony," "misdemeanor and "offense," is far from uniform even among legal writers. In addition to the definition given by Mr. Livingston (and referred to Rep. Code Cr. Pro., 2, note), the following may be mentioned:

"A crime, or misdemeanor," says Blackstone, "is an act committed or omitted in violation of a public law, either forbidding or commanding it." "Crimes and misdemeanors, properly speaking, are synonymous terms; though in common usage, the word 'crimes' is made to denote such offenses as are of a deeper and more atrocious dye."

defined.

Crimes, how divided.

"Misdemeanor," says Christian, "is generally used in contradiction to felony; and misdemeanors comprehend all indictable offenses, which do not amount to felony." (Note to 4 Bl. Comm., 5.)

66

"Misdemeanor," says Chitty, means every offense inferior to felony, but punishable by indictment, or by particular prescribed proceedings. The term 'offense' is usually understood to be a crime not indictable, but punishable summarily, or by the forfeiture of a penalty." (1 Gen. Pr., 14.)

"A crime," says Bell, "may be defined to be any act done in violation of those duties which an individual owes to the community, and for a breach of which the law has provided that the offender shall make satisfaction to the public." (Dict. L. of Scot., tit. Crime.)

Bishop defines crimes as "those wrongs which the government notices as injurious to the public, and punishes in what is called a criminal proceeding, in its own name (1 Cr. L., § 43.)

"The word crime," says Chief Justice SAVAGE, of our own State, speaking of the clause in the Federal Constitution which provides for the extradition of persons charged with treason, felony, or other crime, "is synonymous with misdemeanor, and includes every offense below felony punished by indictment as an offense against the public." (Matter of Clark, 9 Wend., 212, 222.)

"The term misdemeanor," says the same judge, in another case, "is used in contradistinction to felony, and comprehends all indictable offenses which do not amount to felony." (Son v. People, 12 Wend., 314.)

The Revised Statutes of this State, have employed the terms "crime" and "offense" as equivalent to each other, and as denoting "any offense for which any criminal punishment may by law be inflicted" (2 Rev. Stat., 702, § 22); and have defined "felony" as an offense punishable by death or imprisonment in State prison.

The commissioners have based their definitions upon the usage which has grown up in this State under the Revised Statutes; employing "crime" and "offense" in the extensive signification, and confining "felony" and "misdemeanor" to denote the classes into which crimes are divided. (See also Rep. Code of Cr. Pro., 3, § 5, note.)

S4. Crimes are divided into
1. Felonies;

2. Misdemeanors.