Bigamy, with its attendant disgrace and illegitimacy, is a misdemeanor, while embezzlement by a servant is a felony. For a clerk or agent to embezzle—by the code called larceny—is a felony; for a banker, trustee or guardian to embezzle, is only a misdemeanor. * * *
Administering a narcotic with intent to commit larceny, is felony; assault and battery endangering the life of an infant, is a misdemeanor. Blackmailing is only a misdemeanor, while receiving stolen goods is a felony. If one in the heat of a fight, intending to disable or maim his antagonist, should cut him ever so slightly, he is guilty of a felony, but, if he “on purpose, and of malice aforethought by lying in wait, shall unlawfully cut out the tongue, put out an eye, cut off the nose * * * or cut off any limb” of his victim, he commits only a misdemeanor. Also if he “voluntarily, maliciously and of purpose bite off the * * * limb or member of another,” he is guilty of a misdemeanor. Truly, there must have been giants in those days. The effect of these two sections is to make it a graver offense to attempt mayhem and fail, than to succeed.
The Grading of Penalties.
The work of the commissioners who framed the Code of 1860 shows an utter lack of any consistent theory not only of grading the crimes as felonies and misdemeanors, but also in grading the punishment fixed for the various crimes. It may not be easy to do this in all cases. Persons may intelligently differ as to whether perjury should be more seriously punished than assault and battery, and whether larceny or bigamy be deserving of the greater penalty. But it is difficult to see why embezzlement by a consignee or factor should be punished with five years’ imprisonment and embezzlement by a person transporting the goods to the factor should be punished by one year’s imprisonment. * * *
Under the Act of 1860, having in possession tools for the counterfeiting of copper coin is punished by six years’ imprisonment, while by the next section the punishment for actually making counterfeit copper coin is only three years, though it cannot be made without the tools to make it. * * *
The distinction just mentioned is, however, no stranger than that made by the code between a councilman on the one hand and a judge on the other, in the provisions against bribery. Section 48 of the Act of 1860 provides that if any judge * * * shall accept a bribe, he shall be fined not more than $1000 and be imprisoned for not more than five years. But by Section 8 of the Act of 1874, a councilman who accepts a bribe may be fined $10,000, ten times as much as a judge, and be imprisoned the same number of years—five years. The statute also provides that the councilman shall be incapable of holding any place of profit or trust in this Commonwealth thereafter. But the convicted judge is placed under no such disability.
Relations of Fine to Imprisonment.
In the case of almost every crime denounced by the code fine and imprisonment are associated. In most cases the penalty provided is fine and imprisonment, in some it is fine or imprisonment. In a few cases imprisonment alone without a fine is prescribed, and in a few others it is a fine alone without imprisonment. We seek in vain for any principle on which the fine is omitted, where it is omitted; or for a principle on which it is inflicted in addition to imprisonment in some cases, and as an alternative to imprisonment in others. Thus the penalty for exhibiting indecent pictures on a wall in a public place is a fine of $300, but no imprisonment, while by the same act the drawing of such pictures on the same wall carries a fine of $500 and one year’s imprisonment. Manslaughter carries a fine of $1000 as well as imprisonment for twelve years, but train robbery and murder in the second degree involve no fine, but fifteen and twenty years in prison respectively. It cannot be the length of the imprisonment that does away with the fine in this latter case, for the crime of aiding in kidnapping may be punished with twenty-five years in prison, but also has a fine of $5000.
More striking still, perhaps, is the lack of any relation between the amount of the fine and the length of the imprisonment provided in the code. In the case of some crimes the fine is small and the imprisonment short, as in blasphemy, which is punished by a fine of $100 and three months in prison, extortion and embracery punished with $500 and one year. In a few the fine is large and the imprisonment long, as in accepting bribes by councilmen, $10,000 and five years, and malicious injury to railroads, $10,000 and ten years. But in others the fine is small while the imprisonment is long and in others the fine large and the imprisonment short.
Incomplete Crimes.