ulent breach of trust and confidence, as in cases of embezzlement. This is not a crime at common law.42

Fraud in an election of public officers directly affects the public at large, and is a misdemeanor at common law.43

17. Trespasses in General.

If a trespass does not injure or threaten to injure the public to such an extent that public policy requires the state to interfere, it is a mere private wrong, and not a crime. For this reason it has been held that it is not a crime to break the windows of a house, though it be done willfully and maliciously, if it be not done at night, nor in a secret manner, nor in such a way as to disturb the public peace. The same is true of a bare trespass

44

and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor, upon receiving it, to see whether it held out the just measure or not. The offense that is indictable must be such a one as affects the public." Rex v. Wheatly, supra. See post, § 351.

42 Post, § 341, et seq.

43 Com. v. McHale, 97 Pa. St. 397, 39 Am. Rep. 808; post, § 444.

44 Kilpatrick v. People, 5 Denio (N. Y.) 277; post, § 418.

upon land or goods, not accompanied by actual force or threatened violence, so as to amount to a breach of the peace." 45

46

It is otherwise, however, when a trespass is committed under such circumstances as to threaten or injure the whole community. Murder, manslaughter, rape, robbery, burglary, and arson are all trespasses against the person or property, and they are all felonies at common law.4 It is clear that, if such acts are not punished by the state, the security of the whole community is affected; and so it is of many less grevious trespasses. Any trespass that constitutes a breach of the public peace and order, or that threatens a breach of the public peace and order, is a crime at common law. Thus it is a misdemeanor at common law to commit a trespass on real property, if it is committed under such circumstances as to constitute or cause a breach of the peace.47 And it has been held a misde

45 Rex v. Storr, 3 Burrows, 1698; Rex v. Blake, 3 Burrows, 1731; Com. v. Edwards, 1 Ashm. (Pa.) 46; post, § 418.

46 See these specific crimes, post, §§ 197 et seq., 303 et seq., 400 et seq.

47 Com. v. Taylor, 5 Binn. (Pa.) 277; Rex v. Hood, Sayer, 161; post, § 418.

meanor, and not merely a private wrong, to destroy another's property maliciously, and in a secret manner,48 or to maliciously and wantonly kill or maim a domestic animal,49 for these acts have a direct tendency to provoke violent retaliation, and therefore to cause breaches of the peace. 50

18. Nuisances in General.

The same distinction exists as to nuisances. A nuisance which affects the health or comfort of a particular individual only, or of a few individuals, is a mere private nuisance, to be redressed or abated by a civil action;51 but if it affects the health or comfort of the entire neighborhood, or the passers-by on a public highway, it is a common or public nuisance, and a crime.52 Thus, it is a misdemeanor at common law to sell unwholesome pro

48 Loomis v. Edgerton, 19 Wend. (N. Y.) 419; post, § 418.

49 Respublica v. Teischer, 1 Dall. (Pa.) 335; People v. Smith, 5 Cow. (N. Y.) 258; State v. Briggs, 1 Aik. (Vt.) 226; post, § 388.

50 As to breaches of the peace, see post, § 417 et seq.

51 Com. v. Webb, 6 Rand. (Va.) 726; post, § 445 et seq.

52 Rex v. Burnett, 4 Maule & S. 272; post, § 445 et seq,

visions, or to obstruct a public street or highway by collecting a crowd, or otherwise.54 Many other illustrations of the distinction will be found in a subsequent chapter.55

19. Particular Crimes and Their Classification-In General.

The particular crimes prohibited and punished at common law, as well as the more important statutory crimes, will be treated and explained in subsequent chapters. It is proposed to show here only in a general way what crimes were punished by the common law. Following in a general way, though with some change, Blackstone's arrangement, common-law crimes, including both felonies and misdemeanors, may be classified as follows:

1. Offenses especially affecting individuals, among which are included (1) offenses against the persons of individuals, (2) offenses against their property, and (3) of fenses against their habitations.

2. Offenses especially affecting the commonwealth, among which are included (1) offenses against public justice, (2) offenses

38 State v. Lafferty, Tappan (Ohio) 113. 54 Barker v. Com., 19 Pa. St. 412.

55 Post, §§ 445-456,

against the public peace, (3) offenses against the public trade, (4) offenses against the public health and comfort, and (5) offenses against the public morals and sense of decency.

3. Offenses especially affecting the king, or the state, and the government, the most important of which is treason.

4. Offenses more immediately offending God and religion, among which Blackstone included (1) apostacy, (2) heresy, (3) offenses against the established church, (4) blasphemy, (5) profane swearing and cursing, (6) witchcraft, (7) religious impostures, (8) simony, (9) Sabbath breaking, (10) drunkenness, and (11) lewdness.

5. Offenses against the law of nations, among which are (1) violation of safe conducts, (2) infringement of the rights of ambassadors, and (3) piracy.

20. Offenses against the Persons of Individuals.

The following offenses, called offenses against the person, because they especially affect the persons of particular individuals, are either felonies or misdemeanors at common law: