Offences less than treason are, in law, divided into felonies (see Felony) and misdemeanors. Any crime less than a felony is a misdemeanor. Statutes sometimes declare that the offences which they contemplate shall be punishable as misdemeanors, but the term applies equally to all those crimes, whether of commission or omission, for which the law has not provided a name. Misdemeanors are either those which exist at common law, mala in se, or they are those which are created by statute, mala prohihita. Under the former class, whatever, in the language of Blackstone, mischievously affects the person or property of another, openly outrages de-cency, disturbs public order, is injurious to the public' morals, or is a corrupt breach of official dutv, is indictable as a misdemeanor at common'law. Thus it has been held to be an indictable 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 indictable 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 unwholesome provisions; to be guilty of notorious lewdness or drunkenness; to indulge publicly in profane swearing and blasphemy; or, as some authorities hold, to let a house knowing that it. is to be used for the purpose of prostitution. So it has been held to be a misdemeanor, indictable at common law, to deposit more than one vote upon a single balloting; 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 embraces 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 proceeding be positively excluded; because the doing what competent authority forbids, or not doing 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 delined, 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 pursued either as at common law or under the statute. - In respect to misdemeanors, the distinction between principals of the first and second degree is unknown; and those who in treasons and felonies would be accessories after Hie fact, are themselves liable for the commission of a distinct misdemeanor. - The ordinary punishment of misdemeanor at common law is fine and imprisonment, or either of them, in the discretion of the court; and these arc regularly indicted when no other penalty is prescribed. In Connecticut it has been decided that the tine must be less than the whole value of a man's property, and that the imprisonment must be for a less term than the whole ot his life. Finally, in all sentences for misdemeanor, tin- court may require the de-aidant 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 felony 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 statutes 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 preferred, the matter of complaint may still be referred by leave of court. Plainly nothing can prevent an injured individual from submitting to arbitration the private wrong which may be measured and compensated by damages. But the public wrong done, in the slighter misdemeanors even, cannot in strictness be removed from public cognizance except 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 compromise of the matter. This doctrine of the common 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 appear before a magistrate and acknowledge that he has received satisfaction, the accused may, or in some cases shall, be discharged on payment of costs.