Page:The American Cyclopædia (1879) Volume XI.djvu/652

 634 MISDEMEANOR MISIINA1I or property of another, openly outrages de- cency, disturbs public order, is injurious to the public morals, or is a corrupt breach of official duty, is indictable as a misdemeanor at com- mon law. Thus it has been held to be an in- dictable misdemeanor at common law to drive a carriage along the crowded street so as to endanger the lives of foot passengers; to go armed with dangerous and unusual weapons ; to disturb a town meeting or a congregation engaged in religious worship. It is an indict- able nuisance and scandal to the community to disinter a dead body without lawful authority ; to throw a corpse into a river without the rites of Christian burial ; to sell knowingly un- wholesome provisions ; to be guilty of notori- ous lewdness or drunkenness ; to indulge pub- licly in profane swearing and blasphemy ; or, as some authorities hold, to let a house know- ing that it is to be used for the purpose of prostitution. So it has been held to be a mis- demeanor, indictable at common law, to de- posit more than one vote upon a single ballot- ing ; to kill a tree standing upon public ground ; to treat an animal with wanton cruelty ; to send threatening letters ; or to give a challenge to fight. Misdemeanors which are created by statute are of two kinds. The one kind em- braces those which consist in the omission or commission of an act enjoined or forbidden by the statute, though the transgression be not specially made the subject of indictment. For when a statute prohibits a matter of public grievance or commands a matter of public convenience, all infractions of its provisions are indictable, unless this mode of proceed- ing be positively excluded; because the doing what competent authority forbids, or not do- ing what it requires, is itself an offence at common law. The second kind includes those statutory offences which are made specially indictable. If the punishment is expressly denned, the provision of the statute must be strictly followed. If the statute merely attaches a new penalty to what was already a common law offence, the remedy may be pur- sued either as at common law or under the statute. In respect to misdemeanors, the dis- tinction between principals of the first and second degree is unknown ; and those who in treasons and felonies would be accessories after the fact, are themselves liable for the commission of a distinct misdemeanor. The ordinary punishment of misdemeanor at com- mon law is fine and imprisonment, or either of them, in the discretion of the court ; and these are regularly inflicted when no other penalty is prescribed. In Connecticut it has been de- cided that the fine must be less than the whole value of a man's property, and that the im- prisonment must be for a less term than the whole of his life. Finally, in all sentences for misdemeanor, the court may require the de- fendant to give bonds to keep the peace. It is inconsistent with the general policy of the law to allow a criminal charge to be referred to arbitration or to any other mode of private settlement. An agreement to compound a fel- ony has always been held entirely illegal and void. Properly speaking, indeed, the injured party has nothing to compromise. A crime, whatever be the degree of its criminality, is committed against the public order, and it is therefore only upon a public prosecution that the matter can be disposed of. Yet in the slighter offences against the public peace, a compromise, it is said, may be valid. Quoting from Mr. Chitty's notes to the English stat- utes of arbitration, Mr. Justice Patteson said in an English case, that such penal offences as assault, libel, nuisance, and the like, for which an action of damages would lie, may be submitted to arbitration at common law ; and although an indictment has already been pre- ferred, the matter of complaint may still be referred by leave of court. Plainly nothing can prevent an injured individual from sub- mitting to arbitration the private wrong which may be measured and compensated by dam- ages. But the public wrong done, in the slighter misdemeanors even, cannot in strict- ness be removed from public cognizance ex- cept by consent of the proper authority. Hence it seems to be the common law doctrine that though, in such misdemeanors as those just referred to, where the public interest is but little concerned, the criminal process will be waived almost as matter of course upon acknowledgment of private satisfaction, yet express or implied consent of the court to the waiver is still essential to the valid compro- mise of the matter. This doctrine of the com- mon law is carried out in those statutes by which in several states it is provided, that upon a criminal charge of assault and battery or other misdemeanor, for which a remedy by civil action is given, if the injured party ap- pear before a magistrate and acknowledge that he has received satisfaction, the accused may, or in some cases shall, be discharged on payment of costs. MISERERE (Lat., have mercy), the name ap- plied in the Roman Catholic church to the 51st psalm, which commences in the Vulgate with that word, and is employed as a penitential hymn at all times, but particularly during Lent. At the end of the office of Tenebrm on Wed- nesday, Thursday, and Friday of Holy Week, the choir chants or recites it kneeling. At Rome, on Good Friday evening, the Miserere, set to music by Allegri, is sung with great so- lemnity in the Sistine chapel. Many other eminent composers have also set it to music. MISHYlll, or Mshna (late Ileb., study), the earlier part or text of the Talmud, forming a compendium of decisions, based on oral tradi- tions, respecting the laws and religious rites of the Jews, and first systematically arranged by the patriarch Rabbi Judah the Holy and his school, toward the close of the 2d, or accord- ing to others in the first half of the 3d century. It is written in Hebrew, and divided into six