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Differences in crimes

It never fails.

Really, you’d think that by now The Legal Genealogist would know better.

matter of degreeAnswer one question, and there’s bound to be the one you didn’t answer that pops right up that you should have anticipated.

And so it was yesterday with the post about mayhem,1 which explained the differences between and among assault (the threat to hurt somebody), battery (actually touching somebody in anger) and mayhem (in the common law sense).

The blog post mentioned that wounding was “an aggravated species of battery”2 and cited a Minnesota Supreme Court cases where, the Court said, the defendant — though charged with mayhem — could be convicted of “assault in the second degree, or possibly in the third degree…”3

Which prompted reader Tom R. to ask, immediately, “What’s with the degrees anyway? What distinguishes a second degree assault from a third degree assault, or an aggravated assault from a regular one?”

Should have seen that one coming, shouldn’t I?

Simple answer: all matters of degree are all a matter of definition.

And in almost every case, it has to do with how serious the crime is — and how much punishment the Legislature wants to assign for it.

Take assault in Minnesota when that case was decided, for example.

The statute began by defining assault in the first degree:

A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another,
   1. Assaults another with a loaded fire-arm, or any other deadly weapon, or by any other means or force likely to produce death; or
   2. Administers to, or causes to be administered to or taken by another, poison, or any other destructive or noxious thing, so as to endanger the life of such other,
Is guilty of assault in the first degree.4

And on conviction of that crime, a person could be sentenced to “imprisonment in the state prison for not less than five nor more than ten years.”5

Second degree assault was defined differently:

A person who, under circumstances not amounting to the crime specified in the last section,
   1. With intent to injure, unlawfully administers to, or causes to be administered to, or taken by, another, poison, or any other destructive or noxious thing, or any drug or medicine, the use of which is dangerous to life or health; or
   2. With intent thereby to enable or assist himself or any other person to commit any crime, administers to, or causes to be administered to or taken by, another, chloroform, ether, laudanum, or any other intoxicating narcotic, or anaesthetic agent; or
   3. Willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or
   4. Willfully and wrongfully assaults another with a weapon, or other instrument or thing likely to produce grievous bodily harm; or
   5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself or of any other person,
Is guilty of assault in the second degree.6

And on conviction of that crime, a person could be sentenced to “imprisonment in the state prison for not less than two nor more than five years, or by a fine of not more than one thousand dollars, or both.”7

Any assault that didn’t fit into one of those categories, and wasn’t declared lawful (you were allowed to commit certain assaults, in self-defense for example), was defined as third degree assault8 and could be punished “by imprisonment in a county jail for not more than three months, or by a fine of not more than one hundred dollars.”9

So when you see a court record and it talks about a crime of the first degree or second degree or third degree, it’s a defined term in the statutes of that jurisdiction.

In other words — and you can see it coming, can’t you? The Legal Genealogist‘s mantra!! — to understand the records, we have to understand the law. Not the law in general, but the law at the time and place where the record was created.


  1. Judy G. Russell, “Maybe mayhem… and maybe not,” The Legal Genealogist, posted 4 Dec 2017 ( : accessed 5 Dec 2017).
  2. John Gifford, Esq., The Complete English Lawyer; Or, Every Man his own Lawyer : Containing a Summary of the Constitution of England; Its Laws and Statutes, 4th ed. (London : A. Whellier, 1820), 11; CD-ROM reprint (Columbia, Md. : Archives CD Books USA, 2002).
  3. State v. Damuth, 160 N.W. 196, 197 (Minn. Sup. Ct., 1916); digital images, Google Books ( : accessed 3 Dec 2017).
  4. §6471, “‘Assault in first degree’ defined,” in Henry B. Wenzell, et al., compilers, The General Statutes of the State of Minnesota… 1894, 2 vols. (St. Paul., Minn. : West Publ. Co., 1894), II: 1736; digital images, Google Books ( : accessed 5 Dec 2017).
  5. Ibid., §6474, II: 1738.
  6. Ibid., §6472, II: 1737.
  7. Ibid., §6475, II: 1738.
  8. Ibid., §6473, II: 1738.
  9. Ibid., §6476, II: 1738.
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