an act may be an offense both against the common law and a statute, in which case the person committing it may be prosecuted for either the common-law or the statutory offense.18 And the same act may also constitute an offense against different sovereignties, in which case each may prosecute the person committing it for the violation of its law.19 § 16. Merger of offenses. At common law, where the same act constituted both a felony and a misdemeanor, the misdemeanor was merged in the felony, and the accused could be punished for the felony only. So a person indicted for a felony could not be convicted of a misdemeanor, though the misdemeanor formed a constituent part of the felony and was complete, and a person could not be convicted under an indictment for a misdemeanor where the evidence necessary to prove the charge showed the commission of a felony. 20 A person making a false oath in a judicial proceeding may be prosecuted either for perjury or for false swearing. Com. v. Ransdall, 153 Ky. 334, 155 S. W. 1117. Where a slot machine is both a gaining device and a lottery, the keeper of it may be indicted for establishing a lottery though he could also be indicted for establishing a gaming device. Prendergast v. State, 41 Tex. Cr. 358, 57 S. W. 850. 18 This is frequently true in the case of nuisances, Com. v. Kentucky Distilleries & Warehouse Co., 154 Ky. 787, 159 S. W. 570; Indian Refining Co. v. Com. (Ky.), 117 S. W. 274; Peacock Distilling Co. v. Com., 25 Ky. L. Rep. 1778, 78 S. W. 893; or conspiracies. People v. Curran, 286 III. 302, 121 N. E. 637, aff'g 207 Ill. App. 264; Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770, aff'g 114 Ill. App. 75. As to when the common law is impliedly repealed by a statute, see § 79, infra. 19 See § 277, infra. 20 Illinois. Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168. Indiana. State v. Hattabough, 66 Ind. 223; Wright v. State, 5 Ind. 527. New Jersey. Johnson v. State, 26 N. J. L. 313, aff'd 29 N. J. L. 453; State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490. New York. Elkin v. People, 24 How. Pr. 272; People v. Bruno, 6 Park. Cr. 657; People v. Fish, 4 Park Cr. 206. North Carolina. State v. Durham, 72 N. C. 447; State v. Arrington, 7 N. C. 571. Vermont. State v. Noyes, 25 Vt. 415. Under this rule an assault and battery is merged in murder or manslaughter, where death ensues, Wright v. State, 5 Ind. 527; in assault with intent to commit murder, State v. Hattabough, 66 Ind. 223; and in rape, People v. Saunders, 4 Park. Cr. (N. Y.) 196; State v. Durham, 72 N. C. 447; pointing a pistol at another is merged with the offense of shooting at him or assaulting him with intent to murder, Eberhart v. State, 5 Ga. App. 174, 62 S. E. 730; trespass is merged with horse stealing, State v. Arrington, 7 N. C. 571; an assault with intent to commit rape is merged In order that there may be a merger in any case the two offenses must be in fact the same,21 and there must be identity of time, place and circumstance.22 There is no merger when the misdemeanor and in the completed offense of rape, Harmwood's Case, 1 East P. C. 411. It has been held by some courts that a conspiracy to commit an offense is merged in the completed offense where the former is a misdemeanor and the latter a felony. Smith v. State, 8 Ala. App. 187, 62 So. 575; Elsey v. State, 47 Ark. 572, 2 S. W. 337; Hoyt v. People, 140 Ill. 588, 30 N. E. 315, 16 L. R. A. 239; State v. Mayberry, 48 Me. 218; People v. Coney Island Jockey Club, 68 N. Y. Misc. 302, 123 N. Y. Supp. 669; People v. Thorn, 21 N. Y. Misc. 130, 47 N. Y. Supp. 46; People v. McKane, 7 N. Y. Misc. 478, 28 N. Y. Supp. 397; 31 Abb. N. Cas. 176, aff'd 80 Hun 322, 30 N. Y. Supp. 95; Lambert v. People, 9 Cow. (N. Y.) 578. And see Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168; People v. Wicks, 11 N. Y. App. Div. 539, 42 N. Y. Supp. 630. But there is no such merger where the conspiracy is a crime of a higher grade than the completed offense. State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121. See also § 491, infra. The common-law rule was founded on the difference as to procedure between felony and misdemeanor cases, misdemeanants being allowed many privileges in making their defense, such as full privilege of counsel, a copy of the indictment and a special jury, not accorded to felons. Rex v. Westbeer, 1 Leach C. C. 12, 2 Str. 1133. It was considered therefore that no conviction of a constituent misdemeanor could be had on indictment for felony, because of the denial of privileges, and no conviction of misdemeanor where the evidence showed a felony, because the king had a right to the conviction of felony with its attendant forfeiture. And see also as to the reasons for the rule, United States v. Gardner, 42 Fed. 829; State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121; Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168; Wait v. Com., 113 Ky. 821, 69 S. W. 697; Hall v. State, 7 Lea (Tenn.) 685. 21 Hughes v. Com., 131 Ky. 502, 115 S. W. 744, 31 L. R. A. (N. S.) 693. A misdemeanor may be prosecuted as such though part of a felony. The doctrine of merger applies only when the precise act, viewed in respect of its precise consequences, is in question; then it cannot be both a felony and a misdemeanor. City of St. Louis v. Lee, 8 Mo. App. 599. An agreement to receive a bribe and the actual receipt thereof in consummation of the agreement do not become so merged as to prevent a prosecution for the agreement, but the defendant cannot be separately convicted for making the agreement and for the receipt of the bribe. People v. Furlong, 140 N. Y. App. Div. 179, 125 N. Y. Supp. 164, aff'd 201 N. Y. 511, 94 N. E. 1096. Larceny is not merged in a burglary committed in connection with it and on the same occasion. The offense is a compound one, and the defendant may be convicted of either without the other. People v. Smith, 57 Barb. (N. Y.) 46. 22 Hughes v. Com., 131 Ky. 502, 115 S. W. 744, 31 L. R. A. (N. S.) 693. Where the indictment charges that the defendants at one time were guilty of conspiracy and at another [§ 16 felony are distinct and the one is not a necessary constituent of the other,23 nor unless the same act involves both offenses.24 Some courts have held that this rule prevents a merger of a conspiracy to commit a felony in the completed felony, since the conspiracy is a distinct offense, and is not a necessary element of the completed felony or involved in it.25 It has also been held that a conspiracy is not merged in a felony incidentally committed in carrying it out,26 and that there is no merger where a conspiracy involves the doing of a number of things, and some of the overt acts committed pursuant to it are felonies and some are misdemeanors, although the conspiracy itself is a misdemeanor.27 The two offenses must also be of different grades, time were guilty of perjury, there is no merger. Johnson v. State, 29 N. J. L. 453; aff'g 26 N. J. L. 313. 23 Johnson v. State, 26 N. J. L. 313, aff'd 29 N. J. L. 453; People v. Petersen, 60 N. Y. App. Div. 118, 69 N. Y. Supp. 941; People v. Rathbun, 44 N. Y. Misc. 88, 89 N. Y. Supp. 746; State v. Pomeroy, 30 Ore. 16, 46 Pac. 797; State v. Noyes, 25 Vt. 415. The less is merged in the greater offense only when they result from the same act or continuing transac tion. State v. Coppenburg, 2 Strobh. (S. C.) 273. So where one unlawfully carries a dangerous weapon and commits a murderous assault with it, the carrying is not merged in the assault. State v. Dineen, 10 Minn. 407; State v. Livesay, 30 Mo. App. 633. Contempt of court is not merged in subornation of perjury, Ricketts v. State, 111 Tenn. 380, 77 S. W. 1076; nor in the offense of bribing or attempting to bribe a witness. Nichols V. Judge Superior Court, Grand Rapids, 130 Mich. 187, 89 N. W. 691. 24 Johnson v. State, 26 N. J. L. 313, aff'd 29 N. J. L. 453. 25 State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121; People v. Robertson, 284 Ill. 620, 120 N. E. 539, aff'g 210 Ill. App. 234; People v. Darr, 262 Ill. 202, 104 N. E. 389; s. c., 255 Ill. 456, 99 N. E. 651. 26 A conspiracy to charge one with an offense in order to extort money from him is not merged in the offense of perjury or subornation of perjury committed in making the false charge, since the latter offense is merely the means of accomplishing the former, and not the same act. Johnson v. State, 26 N. J. L. 313, aff'd 29 N. J. L. 453. A conspiracy to falsely institute an action for breach of a contract of marriage is not merged in the offense of subornation of perjury committed in procuring the verification of the complaint in such action. People v. Petersen, 60 N. Y. App. Div. 118, 69 N. Y. Supp. 941. A conspiracy to obstruct the due course of law and justice in an action in another state, and to cause false testimony to be given in such action, is not merged in the offense of making false depositions to be used in such action. People v. Rose, 101 N. Y. Misc. 650, 168 N. Y. Supp. 933. 27 Cooke v. People, 134 Ill. App. 41, aff'd 231 Ill. 9, 82 N. E. 863. So a conviction may be had for conspiracy to defraud an insurance company, which is a misdemeanor, though one of the overt acts consti and there is no merger where both are felonies,28 or both are misdemeanors.29 Both offenses must also have been committed in the tuted arson, a felony, where the primary purpose was to obtain insurance greatly in excess of the amount of the loss by buying a small amount of goods, carrying a great portion of them away from the store which was burned, burning a small portion of them, and presenting false invoices of goods purchased, which was a misdemeanor. Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168. 28 Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168. So there is no merger in the case of rape and assault with intent to commit rape, Polson v. State, 137 Ind. 519, 35 N. E. 907; or seduction and enticing a female under age from her father for the purpose of prostitution or concubinage, People V. Bristol, 23 Mich. 118; or burglary and larceny committed on the same occasion, Bell v. State, 48 Ala. 684, 17 Am. Rep. 40; People v. Smith, 57 Barb. (N. Y.) 46; or robbery and assault and battery with intent to rob, Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; or riot and assault with intent to do great bodily harm, State v. Dineen, 10 Minn. 407; where both offenses are felonies. Nor is a conspiracy to commit an offense merged in the completed offense where both the conspiracy and the completed offense are felonies. Davis v. People, 22 Colo. 1, 43 Pac. 122; Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168; Williams v. State, 188 Ind. 283, 123 N. E. 209; Brewster v. State, 186 Ind. 369, 115 N. E. 54; State v. Mayberry, 48 Me. 218; Com. V. O'Brien, 12 Cush. (Mass.) 84. United States, 93 Fed. 452; United States v. McDonald, 3 Dill. 543, Fed. Cas. No. 15,670. Connecticut. State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121. Illinois. Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168; Orr v. People, 63 Ill. App. 305. Indiana. Hamilton V. State, 36 Ind. 280, 10 Am. Rep. 22. Maine. State v. Murray, 15 Me. 100. There is no merger in the case of assault, assault and battery, and aggravated assault, where all of such offenses are misdemeanors. Com. v. Dunmire, 38 Pa. Super. Ct. 155. Nor is a conspiracy to commit an offense merged in the completed of fense where both the conspiracy and the completed offense are misdemeanors. See: United States. Steigman v. United States, 220 Fed. 63; Robinson V. United States, 172 Fed. 105; United States V. Thomas, 145 Fed. 74; United States v. Scott, 139 Fed. 697, aff'd 165 Fed. 172; United States v. Melfi, 118 Fed. 899; Berkowitz v. United States, 93 Fed. 452; United States v. McDonald, 3 Dill. 543, Fed. Cas. No. 15,670. Alabama. State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79; Smith v. State, 8 Ala. App. 187, 62 So. 575. Illinois. Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168; Cooke v. People, 134 Ill. App. 41, aff'd 231 Ill. 9, 82 N. E. 863; Orr v. People, 63 Ill. App. 305. Maine. State v. Mayberry, 48 Me. 218; State v. Murray, 15 Me. 100. Massachusetts. Com. V. O'Brien, 12 Cush. 84. same state.30 And of course there can be no merger where the commission of the felony is not established.31 The doctrine of merger of offenses seems to have been repudiated in England,32 and it has also been repudiated 33 or greatly restricted 30 Regent v. People, 96 Ill. App. 189. See also Thompson v. State, 106 Ala. 67, 17 So. 512; Noyes v. State, 41 N. J. L. 418. A conspiracy formed in one state or country does not merge in a felony committed in another. State v. Effler, 2 Boyce (Del.) 92, 78 Atl. 411; People v. Poindexter, 243 Ill. 68, 90 N. E. 261; Com. v. Parr, 5 Watts & S. (Pa.) 345. 31 Com. v. O'Brien, 12 Cush. (Mass.) 84; Elkin v. People, 28 N. Y. 177, aff'g 24 How. Pr. 272. There is no merger in the case of a conspiracy to obtain money and property of a third person by fraud, where the conspirators only obtained notes, checks and a contract from such person, since they are neither money nor property, and hence the crime is not completed. People v. Warfield, 261 Ill. 293, 103 N. E. 979. A conspiracy to commit larceny is not merged in the completed offense as respects a defendant whose only offense was the conspiracy and who took no part in the larceny, and who could not be convicted of the felony even as an accessary before the fact, and where a plea of conviction or acquittal on the charge of conspiracy would bar a prosecution for the felony. United States v. Gardner, 42 Fed. 829. The doctrine of merger does not apply in a prosecution for conspiracy where the execution of the conspiracy is not alleged in the indictment. Com. v. Andrews, 132 Mass. 263. And it has been held that there is no merger of a conspiracy to commit an offense in the completed offense where the indictment does not sufficiently allege the felony to warrant a conviction of that crime, and it is apparent that the allegations on that subject were inserted merely for the purpose of making the crime of conspiracy complete. People v. Rathbun, 44 N. Y. Misc. 88, 89 N. Y. Supp. 746. And see State v. Townley, 142 Minn. 326, 171 N. W. 930. 32 In Reg. v. Button, 3 Cox C. C. 229, 11 Q. B. (A. & E. N. S.) 929, the defendants were charge with conspiracy to commit a felony, and the evidence tended to show that the felony was in fact committed. Lord Denman sustained the prosecution for the conspiracy. "A misdemeanor,'' he said, "which is a part of a felony, may be prosecuted as a misdemeanor, though the felony has been completed." And again, in Reg. v. Neale, 1 Den. C. C. 37, a conviction for carnal knowledge of a young girl, which was a mere misdemeanor, was sustained, though the evidence showed a rape. 33 State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121; State v. Shepard, 7 Conn. 54; Martin v. State, 123 Ga. 478, 51 S. E. 334; Bell v. State, 103 Ga. 397, 30 S. E. 294, 68 Am. St. Rep. 102; Groves v. State, |