at all, are principals, and the law recognises no degrees in their guilt.

With regard to the punishment of misdemeanors, it is a general rule that all those offences less than felony which exist at common law, and have not been regulated by any particular statute, are within the discretion of the court to punish, (a) and the punishment usually inflicted is fine and imprisonment. (b) The punishment of felonies is generally prescribed by statute.

(a) Russ. Cr. 92.

(b) Ib. 92.

CHAPTER II.

THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR SEVERAL DEGREES OF GUILT.

As a prima facie criminal liability attaches on every person, it is necessary to consider what defences may, in different cases, be urged by different persons, as grounds of exemption from punishment. The law requires an exercise of understanding and of will to render a person criminally responsible, therefore a want or defect of either may be a good defence. (a)

Infants. The general rule is, that infants under the age of discretion are not punishable by any criminal prosecution whatever, but the age of discretion varies according to the nature of the offence. (b) Thus, in some misdemeanors and offences, that are not capital, an infant is privileged, by reason of his nonage if under twentyone; for instance, if the offence charged by the indictment be a mere nonfeasance, unless it be such as he is bound to do by reason of his tenure, or the like as to repair a bridge, (c) then, in some cases he shall be privileged, if under twenty-one, because laches shall not be imputed to him. (d) But if he be indicted for any notorious breach of the peace, as riot, battery, or for perjury, or cheating, or the like, he is equally liable as a person of full age, because upon his trial the Court, ex officio, ought to consider whether he was doli capax, and had discretion

(a) Russ. Cr. 6.

(b) Arch. Cr. Pldg. 16.

(c) Rex v. Sutton, 3 A. & E. 597.

(d) Arch. Cr. Pldg. 17.

to do the act with which he was charged. (a) The law as to an infant's liability is more clearly defined with reference to capital crimes, though their criminal responsibility does not so much depend upon their age as upon their judgment and intelligence. (b) But within the age of seven years, no infant can be guilty of felony, or be punished for any capital offence, for within that age there is an irrebuttable presumption of law that he has no mischievous discretion. (c) On attaining the age of fourteen years, they are presumed to be doli capaces, and capable of discerning good from evil, and are, with respect to their criminal actions, subject to the same rule of construction as others of more mature age. (d)

Between the age of seven and fourteen years, an infant shall be deemed prima facie to be doli incapax, but malitia supplet ætatem, and this presumption may be rebutted by strong and pregnant evidence of mischievous discretion, establishing it beyond all doubt and contradiction. (e) When a child between the ages of seven and fourteen years is indicted for felony, two questions are to be left to the jury-first, whether he committed the offence; and secondly, whether at the time he had a guilty knowledge that he was doing wrong. (f)

An infant under fourteen is presumed by law to be unable to commit a rape, and, therefore, cannot be found guilty of it, and this on the ground of impotency, as well as the want of discretion. This presumption, it seems, is not affected by the 32 & 33 Vic., c. 20, s. 65—making the offence complete on proof of penetration, without evidence of emission. (g) Nor is any evidence admis

(a) Ib. 17.

(b) Russ. Cr. 7

(c) Russ. Cr. 7; Marsh v. Loader, 14 C. B. N. S. 535.

(d) Arch. Cr. Pidg. 16.

(e) Arch. Cr. Pldg. 16.

(f) Rex v. Owen, 4 C. & P. 236.

(g) Kex v. Groombridge, 7 C. & P. 582.

sible to shew that, in fact, the defendant had arrived at the full state of puberty, and could commit the offence. (a) But he may be principal in the second degree if he aid and assists in the commission of the offence, and it appears that he has a mischievous discretion. (b)

It seems a Statute creating a new felony does not extend to infants under the age of discretion, (c) and that Statutes giving corporal punishment do not bind infants, but other and general statutes do, if infants are not excepted. (d) And where a fact is made felony, or treason, it extends as well to infants, if above fourteen, as to others. (e)

Where the defendant, an indented apprentice, was convicted before two Justices, under the Acts of Assembly, for making brooms, contrary to an agreement contained in an indenture executed by him while an infant:-Held that the conviction was bad. (f)

Persons Non Compotes Mentis-Every person, at the age of discretion, is, unless the contrary be proved, presumed by law to be sane, and to be accountable for his actions. But if there be an incapacity, or defect of the understanding, as there can be no consent of the will, so the act cannot be culpable. (g) Where the deprivation of the understanding and memory is total, fixed, and permanent, it excuses all acts, so, likewise, a man labouring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same degree, with one whose disorder is fixed and permanent. (h)

(a) Rex v. Philips, 8 C. & P. 736; Rex v. Jordan, 9 C. & P. 118; Rex v. Brimilow, ib. 336, 2 Mood. C. C. 122.

(b) Rex v. Eldershaw, 3 C. & P. 396; see Rex v. Allen,1 Den. C. C. 364, Arch. Cr. Pldg. 17.

(c) Russ. Cr. 10.

(d) Dwarris 516.

(e) Russ. Cr. 10.

(f) Reg. v. Harris, 1 Allen, 100.

(g) Arch. Cr. Pldg. 17.

(h) Ib. 18; Beverley's Case Co. 125.

It seems clear, however, that to excuse a man from punishment on the ground of insanity, it must be proved distinctly that he was not capable of distinguishing right from wrong at the time he did the act, and did not know it to be an offence against the laws of God and nature. (a) If there be a partial degree of reason; a competent use of it sufficient to restrain those passions which produce the crime if there be thought and design; a faculty to distinguish the nature of action; to discern the difference between moral good and evil,—then he will be responsible for his actions. (b)

Where the intellectual faculties are sound, mere moral insanity, where a person knows perfectly well what he is doing, and that he is doing wrong, but has no control over himself, and acts under an uncontrollable impulse, -does not render him irresponsible. (c) Whether the prisoner were sane or insane at the time the act was committed is a question of fact triable by the jury, and dependent upon the previous and contemporaneous acts of the party.

Upon a question of insanity, a witness of medical skill may be asked whether, assuming certain facts proved by other witnesses to be true, they, in his opinion, indicate insanity. (d) It is said that, as to the criminal liability of a lunatic, the maxim is, actus non facit reum nisi mens sit rea. (e).

Imbecility, and loss of mental power, whether arising from natural decay, or from paralysis, softening of the brain, or other natural cause, although unaccompanied by frenzy, or delusion of any kind, constitutes unsound

(a) Rex v. Offord, 5 C. & P. 168.

(b) Reg. v. McNaughton, 10 Cl. & Fin. 200; 1 C & K. 130 n.; Rex v. Higginson. 1 C. & K. 129. (c) Rex v. Burton, 3 F. & F. 772.

(d) Reg. v. Frances, 4 Cox. 57, per Alderson B. and Cresswell, J.; Reg. v. Wright, R. & R. 456; Reg. v. Searle, 1 M. & Rob, 75; Arch. Cr. Pldg. 19. (e) Jagyard v. Innes, 12 U. C. C. P. 77, per Draper, C. J.