34488221911 Encyclopædia Britannica, Volume 18 — MisdemeanourWilliam Feilden Craies

MISDEMEANOUR (from O. Fr. mes- and demener, to conduct oneself ill), the generic term used in English law to include all those offences against the criminal law which are not by common law or statute made treason or felony. In Russell on Crimes it is defined as a crime for which the law has not provided a particular name (6th ed., i. 193). The term misprision, at one time applied to the more heinous offences of this class, is now almost obsolete. The term misdemeanour includes not only all indictable offences below the degree of felony, some of them grave crimes, such as sedition, riot and perjury, but also the petty misdemeanours, which may be dealt with summarily by justices of the peace, and the most trifling breaches of local by-laws.

As a matter of legal history, many misdemeanours now represent what were originally described as trespasses against the peace, a phrase which is equivalent to a “tort” or delict, accompanied by circumstances calling for prosecution in the interest of the Crown and the public as well as for civil proceedings by the injured parties. Such acts as riot, public nuisance, sedition and the different forms of libel naturally came to be regarded as wrongs against the king’s peace. Many of the early statutes anent justices are particularly concerned with the punishment of rioters; and some offences now treated as misdemeanours belonged to the spiritual and not to the temporal courts, e.g. perjury.

While it is true that almost all crimes which in the middle ages were considered heinous fall into the categories of treason or felony, many statutory misdemeanours differ so little, if at all, from felony in character or in the mode of punishment that, in the absence of a code, no logical line of division can now be drawn, inasmuch as few felonies are now capital and none involve the forfeitures of land or goods, which at one time afforded an appreciable distinction between the two categories of crime. The result is that it is impossible to distinguish without enumerating the specific crimes falling under each head.

Among the chief misdemeanours are: (1) Assault on the sovereign; (2) unlawful assembly; (3) riot and sedition; (4) forcible entries; (5) perjury, which until 1563 was mainly, if not solely, cognizable by the spiritual courts; (6) blasphemy; (7) extortion; (8) bribery; (9) obtaining property by false pretences (which is nearly cognate to the felony of larceny); (10) assault; (11) public nuisance; (12) libel; (13) conspiracy to defraud, &c.; (14) attempts to commit other crimes.

Numerous acts or omissions are punishable as “misdemeanours by interpretation.” In other words, disobedience to the command or prohibition of a statute as to a matter of public concern is indictable as a misdemeanour, even if the statute does not so describe it, unless the terms of the statute indicate that some other remedy alone is to be pursued. For some misdemeanours penal servitude may be imposed by statute. But as a rule the appropriate punishment is by fine or imprisonment without hard labour or both, at the discretion of the court unless limited by a particular statute. The offender may also be put under recognizance to keep the peace and be of good behaviour. Theoretically, whipping may be imposed; but this is not now done except under specific statutory authority: and the like authority is necessary to authorize the addition of hard labour to a sentence of imprisonment.

At the present time the practical difference in English law between misdemeanour and felony lies in matters of procedure, in which a trial for misdemeanour closely resembles an ordinary civil trial.

1. An arrest for misdemeanour may not be made without judicial authority except under specific statutory authority.

2. A person charged with misdemeanour is entitled to bail (see Arrest, i.e. to release on the obtaining of sureties, or even on his own recognizance without sureties to appear and take his trial. Bail is obligatory in all misdemeanours, with the exception of misdemeanours where the costs of the prosecution are payable out of the county or borough rate or fund.

3. A misdemeanour may be tried on an information filed by the attorney-general or by leave of the high court without the indictment essential in cases of treason and felony.

4. The same indictment or information may include a number of charges of misdemeanour committed at different times and even against different persons. See Indictment.

5. A trial for misdemeanour may proceed in the absence of the defendant, who is not “given in charge” to the jury, as in the case of felony.

6. On a charge of misdemeanour a trial by special jury may be ordered.

7. There is no right to challenge peremptorily any of the jurors summoned to try the case; any challenge made must be for cause. The jury is sworn collectively (four men to a book), and not poll by poll as in felony, and their oath is to try the issues joined between the king and the defendant. They may separate during adjournments of the trial, like a jury in a civil case.

8. The costs of prosecuting certain misdemeanours are recoverable out of public funds under specific statutory provisions; but in very few cases can the court make the misdemeanant himself pay them.

9. There are no accessories after the fact to misdemeanour. (See Accessory.)

Under French law and systems based thereon or having a common origin a distinction is drawn between crime (verbrechen), délit (vergehen) and contravention. The English term misdemeanour roughly corresponds to the two classes of délit and contravention but includes some offences which would be qualified as “crime.” In the criminal code of Queensland the term “misdemeanour” is retained, while that of “felony” is abolished; and offences are classified as crimes, misdemeanours and simple offences, the two former punishable on indictment, the latter on summary conviction only; the more serious offences described in English law as misdemeanours are in that code described as crimes (e.g. perjury). In the United States the English common law as to misdemeanour is generally followed, but in New York and other states a statutory distinction has been made between misdemeanour and felony by defining the latter as a crime punishable by death or by imprisonment in a state prison.  (W. F. C.)