Felony

Felony (O. Fr. felonie, from felon, a word meaning “wicked,” common to Romanic languages, cf. Italian fello, fellone, the ultimate origin of which is obscure, but is possibly connected either with Lat. fel, gall, or fallere, to deceive. The English “fell” cruel or fierce, is also connected; and the Greek φῆλυς, an impostor, has also been suggested). Legal writers have sought to throw light on the nature of felony by examining the supposed etymology of the word. Coke says it is crimen animo felleo perpetratum [a crime committed with malicious or evil intent (fee lohn)]. Spelman connects it with the word fee, signifying fief or feud; and felony in this way would be equivalent to pretium feudi, an act for which a man lost or gave up his fee (see Stephen’s Commentaries, vol. iv. p. 7). And acts involving forfeiture were styled felonies in feudal law, although they had nothing of a criminal character about them. A breach of duty on the part of the vassal, neglect of service, delay in seeking investiture, and the like were felonies: so were injuries by the lord against the vassal. Modern writers are now disposed to accept Coke’s definition. In English law, crimes are usually classified as treason, felony, misdemeanour and summary offence. Some writers—and with some justice—treat treason merely as a grave form of felony and it is so dealt with in the Juries Detention Act 1897\. But owing to legislation in and since the time of William and Mary, the procedure for the trial of most forms of treason differs from that of felony. The expression summary offence is ambiguous. Many offences which are at common law or by statute felonies, or misdemeanours indictable at common law or by statute, may under certain conditions be tried by a court of summary jurisdiction (q.v.), and many merely statutory offences which would ordinarily be punishable summarily may at the election of the accused be tried by a jury on indictment (Summary Jurisdiction Act 1879, s. 17).

The question whether a particular offence is felony or misdemeanour can be answered only by reference to the history of the offence and not by any logical test. For instance, killing a horse in an unlicensed place is still felony under a statute of 1786\. But most crimes described as felonies are or have been capital offences at common law or by statute, and have also entailed on the offender attaint and forfeiture of goods. A few felonies were not punishable by death, e.g. petty larceny and mayhem. Where an offence is declared a felony by statute, the common law punishments and incidents of trial attach, unless other statutory provision is made (Blackstone, Commentaries, iv. 94).

The chief common law felonies are: homicide, rape, larceny (i.e. in ordinary language, theft), robbery (i.e. theft with violence), burglary and kindred offences. Counterfeiting the coin has been made a felony instead of being treason; and forgery of most documents has been made a felony instead of being, as it was at common law, a misdemeanour. At the beginning of the 19th century felony was almost equivalent to capital crime; but during that century capital punishment was abolished as to all felonies, except wilful murder, piracy with violence (7 W. IV. & 1 Vict. c. 88, s. 2) and offences against the Dockyards, &c., Protection Act 1772; and by the Forfeiture Act 1870, a felon no longer forfeits land or goods on conviction, though forfeiture on outlawry is not abolished. The usual punishment for felony under the present law is penal servitude or imprisonment with or without hard labour. “Every person convicted of any felony for which no punishment is specially provided by the law in force for the time being is liable upon conviction thereof to be sentenced to penal servitude for any period not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding two years” (Stephen, Dig. Cr. Law (6th ed.), art 18, Penal Servitude Act 1891). A felon may not be fined or whipped on conviction nor put under recognizance to keep the peace or be of good behaviour except under statutory provision. (See Offences against the Person Act 1861, ss. 5. 71.)

The result of legislative changes is that at the present time the only practical distinctions between felony and misdemeanour are:—

1\. That a private person may arrest a felon without judicial authority and that bail on arrest is granted as a matter of discretion and not as of right. Any one who has obtained a drove of oxen or a flock of sheep by false pretences may go quietly on his way and no one, not even a peace officer, can apprehend him without a warrant, but if a man offers to sell another a bit of dead fence supposed to have been stolen, he not only may but is required to be apprehended by that person (Greaves, Criminal Law Consolidation Acts). (See Arrest, Bail.)

2\. That on an indictment for felony counts may not be joined for different felonies unless they form part of the same transaction. (See Indictment.)

3\. That on a trial for felony the accused has a right peremptorily to challenge, or object to, the jurors called to try him, up to the number of twenty. (See Jury.)

4\. That a felon cannot be tried in absentia, and that the jury who try him may not separate during the trial without leave of the court, which may not be given in cases of murder.

5\. That a special jury cannot be empanelled to try a felony.

6\. That peers charged with felony are tried in a special manner. (See Peerage.)

7\. That the costs of prosecuting all felonies (except treason felony) are paid out of public funds: and that a felon may be condemned to pay the costs of his prosecution and to compensate up to £100 for any loss of property suffered by any person through or by means of the felony. In the Criminal Code Bills of 1878-1880 it was proposed to abolish the term felony altogether: and in the Queensland Criminal Code 1899 the term “crime” is substituted, and within its connotation are included not only treason and piracy but also perjury.

8\. That a sentence of a felon to death, or to penal servitude or imprisonment with hard labour or for over twelve months, involves loss of and disqualification for certain offices until the sentence has been served or a free pardon obtained. (Forfeiture Act 1870.)

It is a misdemeanour (i.) to compound a felony or to agree for valuable consideration not to prosecute or to show favour in such prosecution; (ii.) to omit to inform the authorities of a felony known to have been committed (see Misprision), and, (iii.) not to assist in the arrest of a felon at the call of an officer of the law. (See Criminal law; Misdemeanour; Misprision.)

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