should be "expressly defined" by statute,2 and it was held necessary, not only to declare an act punishable by statute, but also to expressly define the offense. To prescribe a punishment for an offense without defining it further than by giving it a common-law name was not enough.30 The present statute is different. It provides that no person shall be punished for any act or omission unless the same "is made a penal offense," and a penalty is affixed by statute.31 Under this provision it is no longer necessary that of fenses shall be defined further than by using a name known to the common law.32

In Louisiana, with some exceptions, no act is a crime unless defined by statute.33

In most states, the common law, in so far as it punishes crimes, has not been altogether abolished. It has been to some extent repealed or superseded by statute,34 but where

29 Pasch. Dig. art. 1605.

30 State v. Foster, 31 Tex. 578; Wolff v. State. 6 Tex. App. 195.

31 Pen. Code, art. 3.

32 Ex parte Bergen, 14 Tex. App. 52; Prindle v. State, 31 Tex. Cr. R. 551, 37 Am. St. Rep. 833. 33 Ante, § 12, note 16.

34 Post, §§ 12, 14, 51.

there has been no express repeal, an act which was an offense at common law, and which is not covered by any statute, may still be punished as a common-law crime.35

15. Acts and Omissions Prohibited and Punished at Common Law-In General.

It may be laid down, as a general rule of the common law, that any act, or any omission of a legal duty, that injures or tends to injure the community at large to such an extent that public policy requires the state to interfere and punish the wrongdoer is a crime, and renders the wrongdoer liable to indictment.36 But an act which injures a sin

35 See State v. Pulle, 12 Minn. 164 (overruling the dictum to the contrary in Benson v. State, 5 Minn. 19); Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, Beale's Cas. 811; People v. Crowley, 23 Hun (N. Y.) 412; Com. v. McHale, 97 Pa. St. 397, 39 Am. Rep. 808; post, § 51.

36 In the case of Com. v. McHale, 97 Pa. St. 397, 39 Am. Rep. 808, where fraud in an election of public officers was held a misdemeanor at common law, it was said: "We are of opinion that all such crimes (acts) as especially affect the public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously affect the public policy and economy." See, also, Walsh

gle individual only, or a few individuals, and does not injure or threaten the other members of the community to such an extent as to require interference and punishment by the state, is a mere private wrong, and must be left to be redressed in a civil action by the party or parties injured.37 This principle has been applied by the courts again and again to the facts of particular cases, and in this way narrower and more definite rules have become established. These rules are sufficient to cover almost any fact or combination

v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128.

"Whatever acts are wicked and immoral in themselves, and directly tend to injure the community, are crimes against the community, which not only may, but must, be repressed and punished, or government and social order cannot be preserved. It is this salutary principle of the common law which spreads its shield over society, to protect it from the incessant activity and novel inventions of the profligate and unprincipled, inventions which the most perfect legislation could not always see and guard against." State v. Lafferty, Tappan (Ohio) 113.

37 Rex v. Wheatly, 2 Burrows, 1125, 1 W. Bl. 273, Beale's Cas. 97; Kilpatrick v. People, 5 Denio (N. Y.) 277; Com. v. Webb, 6 Rand. (Va.) 726.

of facts, and therefore it is seldom necessary to apply the broader principle. Illustrations of its application, and the narrower principles that have sprung from it, will appear in the following sections.

16. Frauds in General.

If a man fraudulently takes and carries away another's goods without his consent, with intent to steal them, he is guilty of larceny at common law, a felony; 38 and if a man defrauds another of his money or property by the use of false weights, measures, or tokens of a public nature, against which common prudence cannot guard, he is guilty of a cheat and misdemeanor at common law; 39 and if he joins another in a conspiracy to defraud, he is guilty of a misdemeanor.40 It was considered by the common law that ordinary care and prudence could not guard against these acts, and that the whole community was threatened to such an extent that the state should interfere for its protection,

38 Post, § 303 et seq.

39 Reg. v. Mackarty, 2 Ld. Raym. 1179; post, § 350 et seq.

40 Reg. v. Mackarty, supra; Com. v. Warren, 6 Mass. 74; post, § 144.

and therefore these frauds were held to be crimes. They have been so regarded from the earliest times.

On the other hand, the common law considered that common prudence cenld sufficiently guard against cheating by mere false representations or lies, without the use of false measures, weights, or tokens, and without conspiracy, and such cheats were held not to be crimes, but mere private wrongs. Such is the case at common law when a man sells an unsound horse on a false and fraudulent representation that it is sound, or sells and agrees to deliver a certain quantity of liquor, and fraudulently delivers a less quantity as and for the quantity agreed upon, using no false measures.41

The same is true of fraud

41 Rex v. Wheatly, 2 Burrows, 1125, 1 W. Bl. 273, Beale's Cas. 97; Com. v. Warren, 6 Mass. 74; People v. Garnett, 35 Cal. 470, 95 Am. Dec. 125; People v. Miller, 14 Johns. (N. Y.) 371; People v. Babcock, 7 Johns. (N. Y.) 201; Middleton v. State, Dudley (S. C.) 275; post, § 351.

In a case involving the facts last mentioned in the text, Lord Mansfield said: "That the fact here charged should not be considered as an indictable offense, but left to a civil remedy by an action, is reasonable and right, in the nature of the thing, because it is only an inconvenie