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The Classification of Crimes in Respect of Continuity

Published online by Cambridge University Press:  12 February 2016

S. Z. Feller
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Any scientific discipline worthy of the name is successful in eliciting the essential nature of the area with which it is concerned and in identifying its basic categories and determining the rules applicable to the inter-relationship of these categories. On these conditions alone can scientific inquiry fulfil its major, perhaps only, task of solving the practical problems that arise in the particular area of study. In every science, therefore, a central place is assigned to an examination of its specific categories.

Jurisprudence establishes general juridical categories that prevail in every branch of law. Yet each branch of law, including the criminal law, has laid down and delimited its own particular categories and continues to do so. From time to time social phenomena appear which do not lend themselves to the classificatory grouping of the current jurisprudential theory. In such cases, the scholar must extract the basic constituents of these phenomena, trace their specific consequences, determine their special nature and dovetail them into the classificatory system of the relevant branch of the law. From this process also derives the practical interest of the scholar in facilitating the smooth articulation of the actual phenomena with the previously prescribed categories and relating to them the legal effects specific to the category under which they fall to be grouped.

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Articles
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Israel Law Review , Volume 2 , Issue 2 , April 1967 , pp. 232 - 269
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1967

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References

1 “By theory, one understands an explicit formulation of determinate relations between a set of variables in terms of which a fairly extensive class of empirically ascertainable regularities (or laws) can be explained.” Nagel, , “Symposium: Problems of Concept and Theory Formation in the Social Sciences”, (1952) 46 Science, Language and Human Rights.Google Scholar

2 See, for example: Od v. A.G. (1963) 17 P.D.42; Ben Hamo v. A.G. (1963) 17 P.D. 2857; Abu Rabia v. A.G. (1963) 17 P.D. 2913; Tsur v. A.G. (1964) vol. 1, 18 P.D.85; A.G. v. Aloush (1965) vol. 1, 19 P.D. 505; Aboutbul v. Krieger (1965) vol. 1, 19 P.D. 429; Al Bena v. A.G. (1965) vol. 2, 19 P.D. 459.

3 “An instantaneous crime is consummated when the act is completed”, 22 Corpus Juris Secundum, 4.

4 A.G. v. Nabulsi (1960) 14 P.D.73; Harnon, A., Contempt of Court (Jerusalem, 1965) 185–248.Google Scholar

5 “A continuous crime endures after the period of consummation”, 22 Corpus Juris Secundum, 4.

6 R. v. Aspinall [1876] 2 Q.B. 48.

7 Amori v. A.G. (1959) 13 P.D. 276, 279.

8 Heruti v. A.G. (1958) 12 P.D. 1541.

9 Goldstein v. A.G. (1956) 10 P.D. 505, 513, 516.

10 U.S. v. Kissel and Harnd (1910) 54 L. Ed. 1168, 1178–79: “A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not the contract, but is a result of it. The contract is instantaneous, the partnership may endure as one and the same partnership for years.”

11 Weissfish v. A.G. (1952) 6 P.D. 262.

12 McDonald v. U.S. (1937) 89 F. (2d.) 128, 133.

13 Weissfish v. A.G. (1950–52) 3 P.M. 367, 372.

14 Ibid., at p. 373.

15 A.G. v. Dadash (1963) 35 P.M. 3, 11.

16 A.G. v. Nabulsi (1960) 14 P.D. 73, 79.

17 A.G. v. Dadash, op. cit.,at 12; Becher v. A.G. (1952) 6 P.D. 415, 417.

18 A.G. v. Nabulsi(1960) op. cit.

19 Farkash v. A.G. (1952) 6 P.D. 412, 414.

20 “An offence of continuing duration cannot be arbitrarily divided into separate and distinct offences by disposition of prosecutor and grand jury to divide it into separate elements of time”. 22 Corpus Juris Secundum,27.

21 This Ordinance has now been repealed but the same offence appears in sec. 210 in the Planning and Building Law, 1965.

22 Criminal File 2572/721 of the Jerusalem Municipal Court (not published). Parts of the judgment are cited in A.G. v. Dadash (1963) 35 P.M. 3, 6–8.

23 A.G. v. Dadash at 10.

24 Ibid.,at pp. 10–13.

25 With regard to non-compliance with a demolition order the legislature has itself prescribed the relation between duration in time of the offence and the measure of punishment. But this is not the case with all continuous crimes. For example, with not reporting for army service, smuggled goods, desertion of young children and the like, the court will impose upon the convicted person the punishment fitting to the offence within the general punishment prescribed by the Law, taking into consideration all the circumstances of the commission of the offence, including clearly the time during which the criminal conduct has continued. The Law itself does not, however, fix a more severe punishment dependent on the duration of the offence.

26 “The rule has often been laid down that in a continuous crime, such as absence from army service, prescription begins to run from the day on which the offence has ceased and an indictment may be filed within three years from that day even. in respect of the period of absence that preceded it.” (Military Appeal 109/59, H.T. 17–33, 231, 233.) This solution recommends itself apart from sec. 41(c)(2) of the Military Justice Law, 1955.

27 Kluger v. A.G. (1949–50) 2 P.M. 20.

28 Farkash v. A.G. (1952) 6 P.D. 412.

29 The parallel is today sec. 211(A)(2) of the New Version, 1957.

30 Farkash v. A.G. (1952) 6 P.D. 412, 413–14.

31 A.G. v. Nabulsi (1960) 14 P.D. 73.

32 Ibid., at p. 79.

33 Harnon, op. cit., 229.

34 Ibid.

35 Ibid.

36 Kluger v. A.G. (1949–50) 2 P.M. 20, 22.

37 Droyon v. A.G. (1952) 6 P.M.S. 56.

38 Ibrahim v. A.G. (1950) 7 P.E. 74; A.G. v. Segal (1962) 32 P.M. 345.

39 This expression is only suggested to distinguish the concept to which it relates from the kin concept of the continuous crime.

40 In France—Ortolan, Vidal et Magnol, Garraud, Garcon, Donnedieu de Varbres. In Italy—Carrara, Impallomeni, Lucchini, Manzini, Campus. In Germany— Liszt-Schmidt, Binding, Merkel, Mezger.

41 Zbornik Deistvuiuchih Postanovlenii Plenuma Verhovnovo Suda U.S.S.R., 1944–57 (Moscow, 1958) 75.

42 Piontkovski, A. A., Uchenie o Prestuplenii po Sovietskomu Ugolovnomo Pravu (Moscow, 1961) 640–46Google Scholar; Durmanov, H. D., Stadii Sovershenia Prestuplenia po Sovietskomu Ugolovnomu Pravu (Moscow, 1955) 55.Google Scholar

43 Cour de Cassation (2e ch.) 7 février 1966; (1965–66) 7 Revue de droit pénal et de criminologie, 673.

44 R. v. Bleasdale,2 C. & K. 765; R. v. Shephard (1868) L.R. 1 C.C.R. 118; R. v. Firth (1869) L.R. 1 C.C.R. 172; R. v. Henwood (1870) 22 L.T. 486; R. v. Balls (1871) L.R. 1 C.C.R. 328; R. v. Wright Dears & B. 431.

45 Hershkovitz v. A.G. (1960) 14 P.D. 627, 630–33.

46 R. v. Lawson (1952) 36 Cr. App. R. 30; R. v. Tomlin [1954] 2 All E.R. 272; Wilson v. Read, Blyth v. Read [1956] Crim. L.R. 418 (D.C.).

47 Hershkovitz v. A.G. (1960) 14 P.D. 627.

48 (1936) 25 Cr. App. R. 208.

49 “A continuous offence is a continuous unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy”. 22 Corpus Juris Secundum,6.

50 “There is authority for the view that where several acts are in fact part of one transaction, there is only one crime although each of such acts might have constituted a crime of itself if not part of such transaction”. Ibid.,27.

51 State v. Jones,46 Mont. 122; 126 P. 929, 930.

52 273 P. 2d. 268. “Finally, appellant contends that the record discloses at most a series of petty thefts and that, therefore, the evidence does not support a conviction of grand theft. The point is not tenable. Essentially, the argument is that each false weight tags and the overcharge for which it stood could support only a finding of petty theft on the amount of that overcharge. But as said in People v. Howes… ‘the general test as to whether there are separate offences or one offence is whether the evidence discloses one general intent or discloses separate and distinct intents. The particular facts and circumstances of such case determine this question. If there is but one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offence’.”

53 (1960) 14 P.D. 627.

54 Following the Hershkovitz case came the decision in Amabtawi v. A.G. (1964) vol. 1, 18 P.D. 229. The appellant stole from his employer between 30 April, 1963, and 3 May, 1963, about 600 metres of electric wiring worth about IL140. He raised the plea of duplicity and added that even if he had stolen the wiring, then the relevant section on which to charge was sec. 270 of the Criminal Code Ordinance, 1936, and not sec. 275. The latter section requires the value of the thing stolen to be at least IL50 and therefore since the theft extended over a period of several days it could not be said with the certainty needed by the criminal law that is was not carried out piecemeal by a number of thefts each of which did not amount in value to IL50. The connection between this substantive plea and the procedural one of multiplicity is very obvious. The Supreme Court dismissed the appeal in the following words of Berinson J.:

“The given period is in total three or four days and one can only regard the stealing—not knowing whether it was all done on one occasion or at different times—as a continuous act, a single act of theft, in the sense explained in the Hershkovitz case.”

In other words, full application was made of the solution based on the first hypothesis considered in the latter case.

55 (1951) 5 P.D. 577.

56 Ibid.,583, 589.

57 Ibid.,592.

58 (1953–54) 9 P.M. 231.

59 See n. 52.

60 Hershkovitz v. A.G. (1960) 14 P.D. 627.

61 A.G. v. Segal (1955) 9 P.D. 393, 401.

62 Jacobovitz v. A.G. (1952) 6 P.D. 514, 565.

63 Sitta v. A.G. (1961) 15 P.D. 1373.

64 (1962) 16 P.D. 2840.

65 (1962) 16 P.D. 313.

66 Vaknin v. A.G. (1962) 16 P.D. 2840.

67 Itshak v. A.G. (1962) 16 P.D. 514.

68 Ibid.

69 See pp. 247–48 supra.

70 See pp. 248–58 supra.

71 Sitta v. A.G. (1961) 15 P.D. 1373.

72 Clearly, where all the operations without exception do not go beyond attempt no difficulty is encountered, since then the condition of “the same nature of offence” is fulfilled, even in the limited sense, and the offence would certainly be serial.

73 See p. 235 supra, where examples of the continuos crime are given.

74 See pp. 234–37 infra, for the legal nature of the serial crime.

75 18 L.S.I. 39.

76 16 L.S.I. 67.

77 A.G. v. Kamha (1945) A.L.R. 786.

78 It may be observed that a difference exists between the concept of the habitual crime and the habitual criminal with a full criminal past.

79 Itshak v. A.G. (1962) 16 P.D. 514.

80 Farkash v. A.G. (1952) 6 P.D. 412.

81 Cf. the Extradition Law, 1954, 8 L.S.I. 144; and the different Extradition Treaties.

82 Vaknin v. A.G. (1962) 16 P.D. 2840.

83 Ibid.

84 Shemaiah v. A.G. (1952) 6 P.D. 765, 768, 773.

85 This does not cover the classification in which the Law arranges the various offences according to the social value protected by their prohibition.