alleged otherwise than by the use of "feloniously." "Feloniously" is used to imply the guilty mind only when the offense falls within the group known as "felonies." Hence, in addition to signifying the mental condition, it also signified that the offense charged was one which the law regarded as a felony. It is possible, of course, to say that the term had but the single meaning of "such mental guilt as is necessarily involved in a felony." But this manner of statement is, after all, only an ellipsis. Under any form of phrasing there distinctly emerge the two ideas of (a) wicked mind and (b) a particular class of crime. Of this double intendment the second half is dictated by no rational rule of pleading; the word is insisted upon simply because, if Coke's explanation be correct, of the historical fact that the word "felleus" was used to characterize the state of mind accompanying atrocious crimes and thus came to refer also to the group into which these crimes more or less crystallized. At any rate, there is no escaping the conclusion that, as used in an indictment at common law the term "feloniously" meant that the act which it described (a) was done with a guilty mind and (b) was of such a character as to fall within the category of felonies.

Now, when, in this State, we allege that an act was committed "feloniously," what do we imply? Unquestionably, the signification of "guilty mind" remains intact. So, we must mean (a) that the act was done with a guilty mind and either (b) that it was of such a character as, at common law, would have brought it into the sphere of "felonies" or (c) that it was of such a character as to render it, under our statutes, punishable by death or penitentiary imprisonment. Of these meanings, that under (a), without gainsay, could be much better expressed by some other word or words specifically descriptive of the state of mind which the law requires for the particular crime in question. The meaning under (b) is manifestly unnecessary. Suppose the rather unlikely event that it was sought to prosecute an act which is not denounced or defined in our Criminal Code but which was a felony at common law. It could not be a statutory felony because of the character of punishment prescribed by Sec. 20, Div. II. Would the fact that it was a felony at common law require us to allege that the act was "feloniously" committed? We fancy that such a contention would get short shrift at the hands of any court. It results that if the word has any meaning, under the Criminal Code, in addition to that of "guilty mind," it is the meaning noted above under (c), viz., that the act done was such as to fall into the class of statutory felonies. But why should it be required for this purpose? Surely, the constitutional provision as to accusation is satisfied without telling the defendant how his crime is punishable. Nor is he even told this by the meaning in question. What it tells him, to be exact, is that, because of the fact that the statute has made its punishment death or penitentiary imprisonment, his offense is classified as a felony. It is perfectly clear that the imparting of any such information is something wholly alien to the office of an indictment.

That clear-sighted judge, Chief Justice Doe of New Hampshire, has put the case very plainly. Referring to an indictment charging the defendant with being accessory after the fact to a burglary, he says, in State v. Felch 58 N. H. 1, 2: "What would 'feloniously' mean in this indictment? Would it inform the defendant that, in England, felony was formerly punished by forfeiture and generally by death? An indictment is an accusation, and not historical instruction. Would it inform him that New Hampshire punishes his crime either by death or state prison? That would be a statement of law, deficient in certainty, and an indictment is a statement, not of law, but of fact. Bishop Cr. Pro. I ss. 52, 53, 274, 275. Would it charge him with knowledge of the burglary, or an intent to assist the burglar in escaping punishment? That knowledge and that intent are fully and plainly, substantially and formally, charged in other and appropriate words. Would it signify that his knowledge, his intent, or his act, was felonious? would be a hint concerning the penalty; and the penalty, being matter of law, need not be suggested. Would it signify that his knowledge, his intent, or his act, was criminal? That would be an unnecessary averment of law. Would it be a memorial of the general confederacy among English prosecutors, witnesses, juries, judges and ministers of the crown, in favor of life, to prevent the enforcement of a code of two hundred capital crimes?: Paterson, Liberty of the Subject II 309, 310. It is not necessary that the grand jury should thus remind the accused or the court that there is no legal or moral ground on which such a confederacy can survive the reason and object of its existence. Darling v. Westmoreland 52 N. H. 401, 407, 408.-There was a rule requiring the word 'heirs' in the conveyance of a fee. When the reason of the rule ceased, the rule ceased. Cole v. Lake Co. 54 N. H. 242, 277-290. Whatever may have been the reason of the rule requiring the word 'feloniously' in indictments for felony, there is no reason for applying that rule in this case."

As long ago as 1796, Judge Swift of Connecticut had likewise reached the conclusion that this was a case of preserving the rule after its reason had disappeared. In his "System of Laws of the State of Connecticut," he says: "The word 'feloniously' is used in indictments for all capital crimes, and for many not capital, as for theft; but as 'felonious' in an indictment can mean nothing more than 'criminal,' and does not designate the nature or class of the crime, it may be deemed unnecessary and immaterial and ought to be exploded by our courts." (II 385, cited in State v. Setter 57 Conn. 461, 466.)

In their reluctance wholly to let go of this word, courts seem to be influenced by the idea that it possesses some inherent peculiarity of meaning essential to a description of the offense. Thus, in U. S. v. Staats 8 How. (49 U. S.) 41, 45, it is said that if the averment of felonious intent "is used, in the sense of the law, to denote the actual crime itself, the felonious intent becomes an essential ingredient to constitute it The term signifying the crime com

mitted, and not the degree of punishment, the felonious intent is of the essence of the offense ." But, as shown above, the term "feloniously" characterizes the crime itself, as distinguished from its penal consequences, only when, and because, the crime was a felony-an offense "feloniously" committed-at common law. And "feloniously," in its common law signification, is an expression, not inherently descriptive of any offense, but one whose meaning, upon analysis, resolves itself into the two senses before noted, viz., that the act (a) was committed with a guilty mind and (b) was of such a character as to be included within the group known as felonies. If the term had any other meaning, at common law, any sense, that is to say, bound up with the notion of the particular crime itself,its use would assuredly still be necessary in the case, above put, of prosecuting a common law felony which, lacking specific mention in the statute, has become a statutory misdemeanor. "It was the theory of the common law," says the court in State v. Clark 83 Vt. 305, Ann. Cas. 1912 A 261, 261-263, "that the word 'feloniously' alleged a particular intent essential to the crime, and that no other expression would serve the purpose. Bl. IV 307; Hawk. P. C. I 71. It is difficult, however, to get from the common law writers a clear understanding of that wherein the term was thought to allege more than was covered by other allegations of criminal intent. It is said that the word 'feloniously' signifies an intent to commit a crime; that it characterizes a mind bent on doing what is wrong; that it means that the act proceeded from an evil heart or purpose; that it is ordinarily but a repetition of what is expressed in other and simpler words. Am. & Eng. Enc. Law (2d ed.) XII 1029; State v. Douglas 53 Kan. 669, 37 Pac. 172; Reg. v. Tolson 23 Q. B. D. (Eng.) 168, 193; Hocker v. Com. (Ky.) 70 S. W. 291; State v. Scott 109 Mo. 232, 19 S. W. 89. It is evident that the intent here described is found in several offenses which were misdemeanors at common law, as well as in felonies. This is equally true of some offenses which are misdemeanors under our statute. For instance, one who steals goods not exceeding twenty-five dollars in value acts with the same criminal intent as the one who steals goods exceeding that value. It comes to what is said in State v. Scott, just cited: 'If the facts proved establish a felony, then the crime. was committed feloniously; if they establish a misdemeanor, the offense was not feloniously committed.""

In the present cases both opinions, as indicated above, lay stress upon Sec. 6, Div. XI, of the Criminal Code providing that "every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury." The conclusion that "feloniously" is no longer necessary follows, we think, independently of this statute. But, if there were any doubt as to this, it is hard to see why the statute does not set it completely at rest. If the 'mens rea' be otherwise adequately alleged, this provision ought to be regarded, of itself, as sufficient to exempt

the pleader from the use of the word "feloniously" in all cases. Indeed, it seems to have been so regarded in Quigley v. People 2 Scam. (3 Ill.) 301, a case of prosecution under the 75th section of the then Criminal Code, for having in possession counterfeit bank notes. There the court, without reference to any distinction between statutory and non-statutory offenses, says of the provision in question: "The technical terms used at common law seem to be dispensed with by this provision, and we have no doubt that the indictment, which alleges a scienter, is sufficient without the allegation that the intent was a felonious one.'

It is inevitable that sooner or later the premises stated in the Matthias Connors case will be followed to their logical conclusion. An unequivocal declaration that the old rule requiring the use of "feloniously" has gone forever, and for all purposes, from the requirements of criminal allegation is demanded in the interests not only of procedural simplicity but also of sound principle. For, whatever be the confines to which the decisions here in question restrict it, the rule can be justified by none but surface reasons. Apart from its too great respect for the narrowness of former decisions, the opinion in the Matthias Connors case clearly demonstrates that the retention of the rule to any extent is the preservation of something which the legislation of this State has reduced to a meaningless vestige of formalism. R. W. M.

PROPERTY-ESTATES CONTINGENT REMAINDERS AND CONTINGENT FUTURE INTERESTS-ESTATES VESTED, SUBJECT TO BE OPENED UP TO LET IN OTHERS.-The distinction between contingent remainders and contingent future interests adverted to in an earlier comment (ILL. L. Rev. XVI 631) is well illustrated by the case of Deem v. Miller 303 Ill. 240, 135 N. E. 396. Historically it should be remarked, the distinction finds its explanation in that the contingent remainder is a creature of the law as it existed prior to the Statute of Uses, and escaped the operation of the statute, whereas the contingent future interest owes its existence to the Statute of Uses. The former was valid prior to the Statute of Uses if the remainderman was ready to take when the life estate fell in, i. e., if no gap in fact occurred, while the contingent future interest was an interest that existed under the Statute of Uses as a 'gap' or a 'lap.'

The rule of destructibility is peculiar to contingent remainders, due to the premature termination of the life estate under circumstances where at the falling in of that estate no remainderman was ready to take the remainder and the remainder fell for want of a tenant (Gray v. Shinn 293 Ill. 580), and because the Statute of Uses did not operate upon a contingent remainder situation (Ill. L. REV. XV 584). The rule was peculiarly a feudal one. The Statute of Uses, where it applied, rendered the existence of a tenant to the freehold unnecessary, and it followed there was no reason for application of the rule of destructibility where the limitation was one by the Statute of Uses, for the use would sustain the 'gap'

or the 'lap,' whichever it be (Cutler v. Garber 289 I11. 205). And that is seen to be the case also where the limitation, though in effect a contingent remainder, is sustained by a trust estate (Fowler v. Samuel 257 Ill. 34).

In that condition of law, the principal case appears, with the limitation X, testator, to A for life, and upon the death of A, to be divided in equal parts among his children. The court has construed this as giving a vested remainder at once upon the death of X to such children as are then in existence, subject to be opened up to let in afterborn children (McComb v. Morford 283 Ill. 589; Dustin v. Brown 297 Ill. 500-508; Gibbs v. Andrews 299 Ill. 511; Weberpals v. Denny 300 Ill. 149-157), and so it was construed by the principal case. Being a case where the remainder is vested, the interest to afterborn children was a shifting interest or 'lap' that the feudal law did not recognize. Recognition of this shifting interest came only with the Statute of Uses, and that at once identified this interest as a contingent future interest and not a contingent remainder, and as it was sustained by the Statute of Uses, the rule of destructibility did not apply.

It is interesting to note that the limitation in the principal case is very like that in the case of Brewick v. Anderson 267 Ìll. 170, where the limitation was: X to A for life, then to be divided equally among X's children, the issue of any who die before distribution to take the parent's share, and the court held that there was no vesting of any interest until the time of distribution; in other words, that the class was to be determined only as of that time. This case was cited to support the decision that in a limitation, X to A for life, then to the heirs of her body, but if she die without child or children, then to the great-grandchildren of X (Drury v. Drury 271 Ill. 336), the class of great-grandchildren could not be ascertained until the death of A. It was suggested in a comment (ILL. L. REV. XVI 473) that the court had since repudiated the position taken in those cases, and that would seem to be borne out by the result in the principal case. E. M. L.

CONSTITUTIONAL LAW-VALIDITY OF ORDINANCE REGULATING REMOVAL BUSINESS.-In Chicago v. Hebard Express & Van Co. 301 Ill. 570; 134 N. E. 27, the City of Chicago sued the Hebard Express & Van Company (a corporation engaged in the City of Chicago in the business of moving and hauling for hire) in the Municipal Court for moving for hire the household goods and personal property of H. M. from one place to another in Chicago without thereafter filing in the office of the bureau of statistics and in the municipal reference library of the City of Chicago the statement required by Section 1, of an ordinance purporting to regulate the business of moving.

Section 1 of the ordinance required

a record of the place from which and the place to which he or it moves the house goods or personal property which record