have made no provision on the subject. Among the highest purposes of government are the protection of property and the enforcement of justice in respect thereto, as between those who may be adverse claimants; and for these purposes courts and offices are created and are supported at large expense to the State. Nor can the tendency of any particular act or omission, or the practicability of guarding and protecting against it be the sole and sufficient test of crime and tort; for many things are crimes which due caution might guard against and many things are only torts which are done secretly, and which the prudence of the injured party cannot prevent. Mr. Austin more correctly says: "The difference between crimes and civil injuries is not to be sought in a supposed difference between their tendencies, but in the difference between the mode wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offense which is pursued at the discretion of the injured party or his representative is a civil injury. An offense which is pursued by the sovereign or by the subordinate of the sovereign, is a crime." This more correctly states the real distinction, which after all must be found in positive laws."

[*84]

*In those cases in which wrongs to individuals are regarded as wrongs to the State also, they are so regarded

Austin, Jurisprudence Lec. XVII. “It is plain, as matter of philosophical speculation, that any act which injures any member of the body politic injures the body politic. The inference from this proposition would be, that every such act, falling directly though it may, only on an individual, is of a nature to be indictable. But this philosophical view is limited in its practical application by the doctrine that the law does not take cognizance of small things. If an injury is of a private nature, affecting directly and primarily only a single person, though the injury is great in magnitude, it still, as a general proposition, is deemed a small thing in the law, when viewed with reference to the public. The individual injured has, in such a case, his civil remedy, but

A

an indictment will not lie. *
better practical statement of the doc-
trine, therefore, is, that either the act
must be in its nature injurious to the
public at large, in distinction from
individuals, or else it must be a wrong
to individuals of a nature which the
public takes notice of as done to it-
self. The books are full of expres
sions going further than this state-
ment, to the effect that in all cases the
act must be a public wrong, in dis-
tinction from a private. But clearly
such expressions arise from misappre-
hension; for, to illustrate, nothing
can be more purely and exclusively
a tort against the individual alone
than a simple larceny, where there is
no breach of the peace, no public loss
of property, since it only changes
hands; no open immorality, corrupt-

either because the common law, in consideration of their evil effects upon the social state, or their tendency to disturb it, has declared them such, or because the statute law, on similar considerations, has made them punishable on a public prosecution. Other wrongs are regarded by the law as private wrongs, merely because it is believed that sufficient protection is given when a remedy is provided which the party wronged can pursue at his option. If he pursues this remedy and obtains redress, any incidental injury the public may have suffered from the act or omission constituting the wrong is supposed to be too insignificant to demand the attention of the State; if he overlooks or forgives the wrong, no one else is supposed sufficiently concerned to warrant an interference.

The foregoing constitutes the only reliable distinction between a crime and a tort; but some of their respective characteristics may be mentioned. In a crime, the most conspicuous and inseparable element is the intent; in a tort, on the other hand, the intent is usually of subordinate importance; sometimes of no importance whatever. The State will not punish an act as a crime unless there is an evil intent either actually indulged or imputable. Where there has been no purpose to disobey the public laws, there cannot, in general, be a crime. A murder lies not in the killing, but in accomplishing a murderous purpose. If one knock another down purposely, it is a crime; but if carelessly, it is only a tort. If one negligently burn his neighbor's house, it is no arson, but it is a tort, because the neighbor had a right to enjoy his house in peace, and to have others observe toward him due care in any action that might endanger his property. But there may be a negligence so gross as to be criminal; the criminal inattention to the rights and safety of others, supplying the place of intent. Such would be the case if the keeper of a savage beast were to leave it to wander at *large, or if one on the roof of his dwelling were to throw [*85] the snow and ice into the public street without looking to

ing the minds of the young; no person in any way affected but he who takes and he who loses the thing stolen; and, as in larceny, so in many other crimes. * Whenever the public deems that an act of wrong to individuals is of such a nature as to

*

require the public protection to be cast over the individual, with respect to the act, it makes the act punishable at the suit of the public; or, in other words, it makes it a crime." 1 Bishop, Cr. Law, §§ 532, 533, 3d ed.

ascertain if persons were passing; or if a sportsman were to fire in the direction and within the reach of a crowd of people; or if the conductor of a railway train were to run out of time in disregard of orders. In the case of negligence so gross, the law implies a guilty intent; or, in other words, it implies that the culpable party must have intended the natural and probable consequences of that which he did or neglected to do, and it holds him accountable accordingly.'

A classification of the various cases of injuries not actually intended may assist in determining the criminal or civil responsibility. The following will, perhaps, be sufficient:

1. Those where an individual, in the exercise of his rights, has accidentally, but without negligence, caused damage to another; as where the horse he was driving has taken fright and run his vehicle against the other's vehicle or person. In such a case he is not legally responsible, either civilly or criminally. No one is in fault; the injury is to be attributed to inevitable accident, and the damage must be left where it chanced to fall.

2. Those where a man, in exercising his rights, has been guilty of negligence to the injury of another. In these cases there is wrong in the negligence, and there is consequently that conjunction of wrong and damage which constitutes a tort.

3. Those where a party who causes the injury was at the time acting recklessly, or with such gross negligence that an injury has followed which should have been anticipated by him. These may be both crimes and torts. A killing by such recklessness or gross negligence would be punished as criminal manslaughter. A case of fatal wounds inflicted while indulging in rude and dangerous sports might be one of this description.'

1 James v. Campbell, 5 C. & P. 372; Regina v. Towers, 12 Cox C. C. 530; Regina v. Macleod, Id. 534; Regina v. Finney, Id. 625; Regina v. Jones, Id. 628; People v. Fuller, 2 Park. C. R.16; Rice v. State, 8 Mo. 561; State v. Vance, 17 Iowa, 138; Lee v. State, 1 Cold.62; Sparks . Commonwealth, 3 Bush, 111; Chrystal v. Commonwealth, 9 Bush, 669; State v. Center, 35 Vt.378; U. S. v. Keller, 19 Fed. Rep. 633; State v. Justus, 11 Oreg. 178; as to responsibility for death from careless handling of loaded pistol; State v.

Emery, 78 Mo. 77; State v. Hardie, 47 Ia. 647; Robertson v. State, 2 Lea, 239. With no evil intent and with the patient's consent, a physician applied kerosene in such way as to produce death. Held guilty of manslaughter on the ground that he had been guilty of gross and reckless negligence. Com. v. Pierce, 138 Mass. 165.

Pennsylvania v. Lewis, Add. (Pa.) 279; as to death from boxing with soft gloves. Reg. v. Young, 10 Cox Cr. C. 371.

4. Those where a party, though not intending the particular injury, was, nevertheless, engaged in doing that which was unlawful. Here it is proper that he be held to an accountability *beyond that which he is under when lawfully [*8C] doing what he has a right to do. These, also may be both public and private wrongs. The case of one who, while committing a trespass, accidentally kills the person trespassed upon, is an illustration. What is thus unintentionally done in the course of a trespass is and must be blamable. The killing, though by accident, is manslaughter.'

The foregoing will sufficiently indicate the grounds on which the criminal law punishes evil intent, and also recklessness. The law so far makes allowances for the infirmities of our nature as not to punish a mere failure to observe ordinary care as a crime, though injury result; but it may justly and properly compel restitution by the party in fault to the party injured.'

'State v. Center, 35 Vt. 378; Rice . State, 8 Mo. 561. Where a man causes the death of his insane wife by negligently exposing her to the weather insufficiently clad, a criminal intent need not be averred, nor proved, in order to constitute manslaughter. A naked, negligent omission of a known duty, when it causes or hastens the death of a human being, constitutes manslaughter. State . Smith, 65 Me. 257.

Where one wrongfully took a box from a refreshment stand, on a pier, and wantonly threw it into the sea and killed a person swimming below, it was held that whether or not the act was manslaughter, depended on the question of the man's negligence, not on the fact that a civil wrong had been done in taking up and throwing away the box. Reg. v. Franklin, 15 Cox Cr. C. 163; S. C. 5 Am. Crim. Rep. 377.

In the private suit, a conviction in the public prosecution cannot be proved for the purpose of making out a cause of action. Smith v. Rummens, 1 Camp. 9. It has been held, how

ever, that if the defendant plead guilty in the criminal suit, this is evidence against him in the civil suit. Eno v. Brown, 1 Root, 528. Mr. Phillips says it is conclusive against him. 3 Phil. Ev. 518. But in another place he speaks with more reserve. 2 Phil. Ev. 54. Mr. Starkie says the conviction on a plea of guilty is evidence, like any other admission, 2 Stark. Ev. 218, note. And, see, Stephens v. Jack,3 Yerg. 403; Ward v. Green, 11 Conn. 455; Bradley v. Bradley, 2 Fairf. 367; Mead v. Boston, 3 Cush. 404. If the guilty party has been convicted, on trial, and punished for the crime, he may, nevertheless, contest the fact of guilt in a civil suit instituted by the aggrieved party, and the judgment in the criminal suit is not admissible in evidence to establish it. The reason given in some cases is, that the plaintiff in the civil suit may have been a witness, by means of whose testimony a conviction was had, and to receive the conviction in evidence in his behalf would be to enable him indirectly to prove his case by his own oath; but the better ground is, that the parties

There is in England a rule regarding the order of proceedings when an action is both a public and private offense. The rule is, that if the public offense is of the grade of felony, the private remedy is suspended until the public justice is satisfied. Sometimes it is said that the private wrong is merged in the pub. [*87] lic wrong; but this is inaccurate; it is not merged or *swallowed up, it is only stayed for the time. The rule is stated by LORD ELLENBOROUGH as follows: "The law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be disposed of before the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect to the public offense; and after a verdict, either of acquittal or conviction, a civil action may be maintained."

Looking for the reason of the rule, which seems a harsh one, we discover it in the fact that in that country the party injured is relied upon to take the place of public prosecutor; and his

to the two proceedings are not the same, and there is consequently a want of mutuality. Duchess of Kingston's Case, 20 How. St. Trials, 538; Gibson v. McCarthy, Ca. Temp. Hard. 311. See England v. Bourke, 3 Esp. 80; Cook v. Field, Ib. 133; The King v. Boston, 4 East. 572; Burdon v. Browning, 1 Taunt. 519; Jones v. White, 1 Str. 68; Maybee v. Avery, 18 Johns. 352; Mead v. Boston, 3 Cush. 404; 1 Hale P. C. 410; 1 Stark. Ev. 332; 1 Greenl. Ev. § 587 and note; 1 Phil. Ev., Ch. 4, § 2; 2 Ibid. Ch. 1, § 1.

Crosby v. Leng, 12 East, 409. See 1 Hale, P. C. 546; Masters v. Miller, 4 T. R. 320; Higgins v. Butcher, Yelv. 89; Gibson v. Minet, 1 H. Bl. 569; Gimson v. Woodfull, 2 C. & P. 41; White v. Spettigue, 13 M. & W. 603; Stone v. Marsh, 6 B. & C. 551. The suspension of civil remedy is frequently spoken of in the books as a merger of the civil action in the felony; but, as was well said by RICHARDSON, Ch. J., in Pettingill v. Rideout, 6 N. H. 454: "to call a suspen

sion of civil remedy till the criminal justice of the State is satisfied a merger is, in our opinion, very little, if anything, short of an abuse of language." The suspension might take place when there was no felony at all; for if the circumstances were such that there was reasonable ground to believe the action of the party was felonious, the civil remedy was de nied until after his guilt or innocence had been determined in a criminal prosecution. Prosser v. Rowe, 2 C. & P. 421; Crosby v. Leng, 12 East, 409; Gimson v. Woodfull, 2 C. & P. 41. The law on this subject seems now in an unsettled state in England. In a late case where the question was fully considered upon all the cases, the court remarked that the old doctrine was exploded, but the decision turned on the fact that it did not appear whether there had been a neglect to prosecute. Midland Ins. Co. v. Smith, L. R. 6 Q. B. D. 561. See also Wells v. Abrahams, L. R. 7 Q. B. 554. Ex parte Ball. L. R. 10 Ch. D. 667.