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punishable with death; provided that in neither case the capital punishment has been taken away by any subsequent statute.-(See 7 & 8 Geo. IV. c. 28, s. 7.)
In other cases, felonies are punishable either, 1st, in the particular manner described by the statute or statutes specially relating to such felony; or, 2dly, (where no punishment is specially provided,) the offender is liable, at the discretion of the Court, to be transported for seven years, or imprisoned for any term not exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit,) in addition to such imprisonment; and the Court may also sentence the offender to be kept to hard labour, and also to direct solitary confinement for the whole or any portion of the imprisonment.—7 & 8 Geo. IV. c. 28, s. 8, 9.
Misprisions and contempts are a high species of misdemeanor, being such as affect the king, or his government, or courts of justice.—4 Bl. C. 121.
But misprision, in its more ordinary sense, is that particular kind of misdemeanor which consists in the knowledge or concealment of a felony committed, or to be committed, by another person.
That is, a knowledge and concealment without assent; for an express assent will make a man principal or accessary in the crime.-4 BI. C. 120, 121.
The punishment of misprision of felony, in a common person, is fine and imprisonment; in an officer, such as a sheriff or bailiff of liberties, imprisonment for a year, and ransom at the king's pleasure.—Chitty's Burn, " Felony."
OF THE PERSONS CAPABLE OF COMMITTING CRIMES.
As to the capability of committing crimes, the only persons excepted are as follows:
Infants. Under seven, an infant cannot be guilty of felony.1 Hale, P. C. 27.
Under fourteen, he is primâ facie doli incapax, but subject to the maxim malitiu supplet ætatem.
At fourteen, he is liable for felony without the benefit of any presumption from his age, and for any notorious breach of the peace, as riot, battery, or the like; and he is liable to outlawry.-Co. Litt. 247; 2 Dyer, 104.
So he is liable for perjury or cheating.-Bac. Ab." Infancy, (H.)”
But under twenty-one he is not liable for misdemeanors of certain kinds, consisting of mere nonfeаzance, such as not repairing a bridge or highway.-1 Hale, P. C. 20, 21, 22,
An insane person, while he continues such, cannot be guilty of a crime.- Ibid.
But to exempt him it must be proved that he was incapable of distinguishing right from wrong.–1 Russ. 12.
Whether compos or not is a question for the jury, to be determined by his previous and contemporaneous acts, and witnesses of medical skill.-4 Bl. C. 25; R. & R. 456. A person insane or idiot, at time of arraignment for a capital offence, ought not to be arraigned; if he becomes so after pleading, he ought not to be tried ; if after conviction, judgment ought not to be pronounced ; if after judgment, execution should be stayed.-.1 Hale, P. C. 34.
By 39 & 40 Geo. III. c. 94, if a person charged with any offence be brought up to be discharged for want of prosecution, and appear to be insane, the Court may order a jury to be impannelled to try the sanity, and if they find him insane, may order him to be kept in custody till his Majesty's pleasure be known.
By same statute, s. 2, if a person indicted for any offence appear insane, the Court may on his arraignment order a jury to be impannelled to try the sanity, and if they find him insane, may order the finding to be recorded, and the insane person kept, ut supra.
By same statute, s. 1, if upon the trial for treason, murder, or felony, insanity at the time of committing the offence is given in evidence, and the jury acquit, they must be required to find specially whether insane at the time of the commission of the offence, and whether he was acquitted on that account; and if they find in the affirmative, the Court must order him to be kept, ut supra.
By same statute, s. 3, if any person shall be discovered and apprehended under circumstances that denote a derangement of mind, and a purpose of committing some crime for which, if committed, he would be liable to be indicted, and any justice before whom such person may be brought should think fit to issue a warrant for committing such person as a dangerous person, suspected to be insane, (such cause of commitment being plainly expressed in the warrant,) the person so committed shall not be bailed except by two justices, one whereof shall be the justice who issued such warrant, or by the quarter sessions, or by one of the judges, or lord chancellor, lord keeper, or commissioners of the great seal.
And see 9 Geo. IV. c. 40, s. 44, as to commitment of insane vagrants and paupers.
Drunken Persons. Persons voluntarily drunk are liable for all crimes committed in that state.
But insanity, though caused by habitual drunkenness, will excuse.- 1 Hale, P. C. 32; 1 Hawk. c. 1, s. 6; Co. Litt. 247.
In general a felony committed by a wife in the presence of her husband is excused.--1 Hale, P. C. 45, 516; 1 Hawk. c. 1, s. 9.
But not in his absence.-R. & R. 27.
Nor where the evidence shows she was acting voluntarily, and was principally instrumental.-1 Hale, P. C. 516.
Nor in case of treason.
Nor in murder or manslaughter.—1 Hale, P. C. 45; 1 Hawk. c. 1, s. 11; 1 St. Tr. 28.
Nor (according to the prevalent opinion) in any misdemeanor, if found guilty with her husband.—1 Salk. 384; 4 Bl. Com. by Ryland, 29, n. (10.)
If the indictment describes her as wife, she need give no proof of being so; but it is no ground for dismissing the indictment, which should proceed; and if indicted jointly with her husband, he may be convicted, and she acquitted.1 Hale, P. C. 46.
If the indictment does not describe her as wife, she must prove the marriage; but evidence of cohabitation and reputation will suffice.-1 Russ. 20; 2 C. & P. 434.
Persons under Compulsion of Threats. Persons acting under threats, inducing fear of death or other bodily harm, are in general excused from crimes so committed.
If the fear be sufficiently well founded to affect a man of firm mind. 4 BI. C. 30.
But not in case of murder.- 1 Hale, P. C. 51.