People v. Lefkovitz , 294 Mich. 263 ( 1940 )

I do not join in the opinion of Mr. Justice SHARPE in grafting on the criminal law of this State the so-called common-law offense of misprision of felony.

There is not now and never has been such a substantive crime in the State of Michigan.

At common law the essential of the crime was such a concealment of knowledge of a felony as to constitute the offender in that respect an accessory after the fact. Text-writers on criminal law, cited by my Brother, and works on pleas and procedure in criminal cases practically all cite Coke on the subject of misprision of felony and let the subject go at that. I, therefore, quote what Coke said in the Third Part of the Institutes of the Laws of England (Ed. 1660, p. 139):

"Now are we to speak of concealment or not discovery of felony. As in case of High Treason, whether the treason be by the Common law or Statute, the concealment of it is misprision of treason; so in case of felony, whether the felony be by the Common law or by Statute, the concealment of it is misprision of felony.

"If any be present when a man is slain, and omit to apprehend the slayer, it is a misprision, and shall be punished by fine and imprisonment.

"And as the Concealment of High Treason is higher by many degrees than the concealment of felony, so the punishment for the concealment of the greater is heavier than of the lesser; and yet the concealment of felonies in Sheriffs or Bailifs of liberties is more severely punished than in others, viz. by imprisonment by one year, and ransome at the will of the King. From which punishment if any will save himself, he must follow the advice of Bracton, to discover it to the King, or to some Judge or Magistrate that for administration of justice supplieth his place, with all speed that he can. * * *

"And this is intended of a concealment or not discovery of his mere knowledge: for in case of High Treason, he that knoweth it before it be done, and assenteth unto it, isparticeps criminis, and guilty of treason; and in case of felony, he that receiveth the thief, and assenteth to it, is accessory."

The term "concealment," as employed by Coke, means something more than mere silence or failure to disclose, unless such, in purpose, is in aid of an offender and of such nature as to constitute one an accessory after the fact.

In modern criminal law mere nondisclosure of knowledge of crime committed by another is not misprision of felony nor any substantive crime.

The old-time common-law offense of misprision of felony, short of an accessory after the fact (if there ever was such a crime, which is extremely doubtful because wholly unsupported by adjudications in England), is not now a substantive offense and not adopted by the Constitution, because wholly unsuited to American criminal law and procedure as used in this State. On this subject see Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Perrin v. Lepper, 34 Mich. 292, 295; Reynolds v.McMullen, 55 Mich. 568, 583 (54 Am. Rep. 386).

Chief Justice Marshall, in Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575, made the following observation:

"It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."

Wharton's Criminal Law (11th Ed.), § 289, states that:

"Misprision, as a substantive offense, however, is practically obsolete."

In 2 McClain on Criminal Law, § 938, it is said:

"In some States the offense is recognized by statute. But the whole doctrine of guilt by misprision, like that of the guilt involved in being accessory after the fact, has become practically obsolete, and perhaps not a single case can be cited in which punishment for such connection with a felony has been inflicted in the United States. If such criminal liability is recognized in any form it is by statute making particular acts of that character substantive offenses rather than by the preservation of the common-law doctrine of misprision of felony."

In State v. Wilson, 80 Vt. 249 (67 A. 533), cited by my Brother, the case did not result in a conviction for it was reversed and remanded for defective information; and what was said went back to Coke.

State v. Biddle, 32 Del. 401 (124 A. 804), consists of the charge to the jury by a Delaware trial court (Court of General Sessions, New Castle). Defendant had no counsel and the verdict was not guilty.

The conviction is set aside, the information quashed and defendant discharged.

BOYLES, CHANDLER, NORTH, McALLISTER, and BUTZEL, JJ., concurred with WIEST, J.