has expressed a different opinion, and, in giving, in one of his books, his understanding of the law of England on this subject, he there says that, "no act is a crime if the person who does it is, at the time when it is done, prevented. "either by defective mental power or by any disease affecting his mind, from • controlling his own conduct." And again he says, "It has been thought "that the law of England is that the fact that a man is disabled from controlling 44 .6 his conduct by madness is not, if proved, a good defence to a charge of crime "in respect of an act so done. This appears to me to be a mistake traceable "in part to a misunderstanding of the meaning and in part to an exaggeration "of the authority of the answers of the judges in MacNaghten's case." (1) The view here taken by Sir James F. Stephen does not, however, appear to be the one taken by English judges in general. For instance, in a case of shooting and wounding in 1812, Mr. Justice LeBlanc charged the jury that if they were of opinion that the prisoner was, when he committed the offence, capable of distinguishing right from wrong, and was not under the influence of any illusion which disabled him from discerning that he was doing a wrong act, he would be guilty in the eye of the law. (2) In another case where the prisoner was on trial for murder, Chief Justice Mansfield told the jury that in order to support the defence of insanity it ought to be proved, by the most distinct and unquestionable evidence, that the prisoner was incapable of judging between right and wrong. (3) And in a case where the prisoner was charged with shooting at the Queen, Lord Denman, C. J., said to the jury, The question is whether the prisoner was laboring under that species of "insanity which satisfies you that he was quite unaware of the nature character "and consequence of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious, "at the time he was committing the act, that it was a crime." (4) In effect the same doctrine was laid down by Lord Lyndhurst in a murder trial at Bury in 1831; (5) by Baron Bramwell in Hayne's case; (6) by Baron Parke, in Barton's case; (7) by Mr. Justice Maule, in Higginson's case; (8) by Mr. Justice Wightman in Burton's case; (9) by Chief Justice Erle in Leigh's case; (10) by Chief Justice Tindal in MacNaghten's ease; (11) and by Baron Martin in the Townley murder case in 1863. (12) In a still more recent case of murder at Chatham, in 1875, Mr. Justice Brett said. “The man may be mad. I assume that he is so in the 66 41 medical sense of the term; but the question here is whether he is so mad as "to be absolved from the consequences of what he has done? He is not so absolved, though he is mad, if he be not so mad as not to know what he was doing, or not to know that he was doing wrong." (13) .f 44 Drunkenness.-With regard to derangement of the mind by the use of intoxicating liquors, the rule is that if drunkenness be contracted voluntarily it will not relieve a person from responsibility for a criminal offence committed by him while in a drunken condition, whether at the time he knows what he is doing or not. (14) Still if the act be one which must, in order to render it a criminal offence, be done with some particular intent, the fact of its being done (1) Steph. Gen. View, Cr. Law, 78, 80. (2) Bowler's case, Collis. Lun., 673; ! Russ. Cr., 5 Ed., 117, 118. (3) Bellingham's case, Collis Addend., 636; 1 Russ. Cr. 118. 14) Reg. v. Oxford, 9 C. & P., 525; 1 Russ Cr., 119. (5) Rex. v. Offord, 5 C. & P., 168; 1 Russ. Cr., 119. Reg. v. MacNaghten, 10 Cl. & F., 200; 1 Russ. Cr., 121; Woodman & Tidy, 872. (12) Reg. v. Townley, 3 F. & F,, 839; 1 Russ. Cr., 129, 130. 66 (13) Reg. v. Blomfield, Vide Lancet," July 31, 1875; Woodman & Tidy, 871. (14) Bl. Com., 26; 1 Hale, 32; I Hawk., P C., c. 1, s. 6; I Russ. Cr., 114. when the offender is in a state of intoxication should be taken into account in deciding whether he has such intent or not. (1) If the drunkenness be involuntary, as if a person be made drunk by stratagem or fraud, or by some mistake, as by a physician unskilfully administering some drug or intoxicant to a patient, or if a man become intoxicated in any other way than by his own voluntary act, he will not be responsible for an offence committed while so affected to an extent which prevents him from knowing what he is doing or from knowing that he is doing wrong. (2) Or, if by habitual drinking a person become affected by a fixed frenzy, delirium tremens, or other form of insanity, whether permanent or intermittent, he cannot be held responsible for an act done by him while thus affected, if he be thereby rendered incapable of knowing that the act is wrong, or if he be thereby subjected to some specific delusion causing him to believe in the existence of some state of things which, if real, would justify or excuse his act. (3) 12. Compulsion by threats.-Except as hereinafter provided, compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for the commission, by a person subject to such threats, and who believes such threats will be executed, and who is not a party to any association or conspiracy the being a party to which rendered him subject to compulsion, of any offence other than treason as defined in paragraphs a, b, c, d, and e of subsection one of section sixty-five, murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm and aison. According to this article, (the provisions of which, together with those of article 13, are included in section 23 of the English Draft Code), a pǝrson is relieved from responsibility for any offence (other than the offences specially excepted by the article), when committed under compulsion by threats, if it be proved,-1st, that the threats were of immediate death or grievous bodily harm, made by some one actually present at the commission of the offence; 2nd, that the person so threatened believed such threats would be executed, and 3rd, that he was not a party to any association or conspiracy rendering him subject to compulsion. ILLUSTRATIONS. A, under compulsion by threats of immediate death or grievous bodily harm from B, then actually present, sets fire to C's house, believing that B will carry out his threats. A is not excused, but is guilty; because arson is one of the offences excepted by the article. A, under compulsion by threats of immediate death or grievous bodily harm from B, then actually present, commits a common assault upon C, believing that B's threats will be executed. A is excused; because the offence is one of those not excepted by the article. A, under compulsion by threats of death or grievous bodily harm from B, who is not actually present, commits a common assault upon C, believing that B will carry out his threats. A is not excused. (1) Rex v. Meakin, 7 C. & P., 297; Reg. v. Monkhouse, 4 Cox C. C., 55; Reg. v. Cruse, 8 C. & P., 541-546; R. v. Moore, 6 Law Rep. (N. S.), 581; 3 C. & K., 319; | Russ. Cr., 115; Steph. Gen. View Cr. Law, 81; King v. State (Ala.), 8 So. Rep., 856; 13 Cr. Law Mag., 654; Chatham v. State (Ala.), 9 So. Rep., 607; 13 Cr. L. Mag., 938; 1 Bish. New Cr. L. Com. 253. (2) 1 Russ. Cr., 5 Ed., 114; Co. Lit., 247; 1 Hale, 32; 1 Bish. New Cr. Law Com., 250. (3) Hale, 30; 1 Russ. Cr., 114; U. S. v. Drew, 5 Mason, 28; Burrow's case, 1 Lewin, 25. стой A, being threatened with immediate death or grievous bodily harm from B, who is actually present, commits a common assault on C, but A does not believe that B will carry out his threats. A is not excused. A, as a member of an association or conspiracy, becomes bound to act with his co-associates or co-conspirators; and, it being resolved that B shall be assaulted, A acting under compulsiou by threats of immediate death or grievous bodily harm from his co-associates or co-conspirators, assaults or assists in the assault on B. A is not excused. Compulsion by force-Although the law will not excuse the commission of any of the above excepted offences, such as murder, piracy, rape, arson.-done under cumpulsion by threats even of immediate death, it will be different with a person who is not a free agent physically, but who is subjected,—not to threats operating on his mental faculties,-but to actual physical force exercised without or against his consent by a third party at the time of the act being done. ILLUSTRATION. "If A, by force take the arm of B, in which is a weapon, and thereby kill C, "A is guilty of murder, not B;" (1) for B, in this instance, is as unwittingly the instrument of A, as, if he were inanimate or unconscious; and his own will has nothing at all to do with the act, which is as exclusively the act of A as if the weapon were in the latter's hand instead of in B's. Compulsion by necessity.—The law of necessity is paramount over all other laws; and it has been well said that every law of man, common law or statutory law, has in it the implied exception, which is of the same force as if expressed, that obedience shall not be required when it is impossible, and that an act which is unavoidable is no crime. (2) And, as everything which is necessary for a man to do to save his life is treated as compelled, it follows that if I am attacked by a ruffian who seeks my life, I may kill him if I cannot otherwise preserve my own life. (3) And, if during an embargo a vessel is by stress of weather compelled to put into a foreign port and there sell her cargo, for the preservation of the lives and property on board, she will not be adjudged guilty of a breach of the Embargo Act. (4) ILLUSTRATIONS. A & B swimming in the sea after a shipwreck, get hold of a plank not large enough to support both. A pushes off B who is drowned. A commits no crime. (5) A doctor kills a child in the act of birth as the only way to save the life of the mother. The doctor is justified. (6) Where shipwrecked sailors and passengers were escaping in a boat which would not hold all, the sailors threw some of the passengers overboard. Held that, unless the presence of the sailors was necessary for the common safety, the passengers should have been kept in the boat in preference to the sailors. (7) 13. Compansion of wife.-No presumption shall be made that a married woman committing an offence does so under compulsion because she commits it in the presence of her husband. (1) Russ. Cr., 5 Ed., 139; 1 East. P. C., 225. (2) Reg. v. Dunnett, 1 Car. & K., 425. (3) 4 Bl. Com., 183. (4) The William Gray," I Paine, 16; 1 Bish. New Cr. Law Com, ? 351. 44 (5) Bacon's Max., No. 5, Burbridge Dig Cr. Law, 38; 1 Hawk., c. 28, s. 26. (6) Step. Gen. View Cr. Law, 2d Ed., 77. (7) U. S. v. Holmes, 1 Wall Jr., 1; Burbridge Dig. Cr. Law, 37. Brom This article very properly abrogates the common law doctrine by which a wife who committed any crime, other than treason or murder, in her husband's presence or company, was prima facie presumed to act under his coercion. (1) Blackstone says that in his day this rule was at least a thousand years old in England, and that among the northern nations of Europe the privilege extended to every woman transgressing in company with a man, the indemnity being similar to that accorded to every slave who committed a joint offence with a freeman. Its origin is thus clearly derivable from the old barbaric notions of the abject position of the wife in the matrimonial relation. Under this old rule it was held in one case where a wife went from house to house uttering base coin, her husband accompanying her, but remaining outside, that her act must be presumed to have proceeded from his coercion. (2) While, however, the common law protected a wife from punishment for any ordinary crime committed by her under the coercion of her husband, or in his company, which was construed as a coercion, (3) still as the husband's presenoe merely raised a prima facie presumption of coercion, if the evidence clearly shewed that she was not drawn to the offence by the husband, or if she were the principal inciter of it she was punishable as well as her husband. (4) And if she committed an offence voluntarily, or by the bare command, but without the actual presence of the husband, at the time of committing the offence, she was punishable. (5) Thus, where a woman was tried for uttering a forged order and her husband for procuring her to commit the offence, and it appeared that although her husband had ordered her to do it, he was not present when she did it, the judges, upon a case reserved, held that the presumption of coercion did not arise, as the husband was absent at the time of the uttering, and that the wife was properly convicted of the uttering and the husband of the procuring. (6) And, again, where the husband was a cripple and confined to his bed, his presence when the wife committed a crime did not exonerate her; (7) probably because it was considered that the ordinary prima facie presumption of his presence being a coercion was destroyed by the stronger presumption that in his crippled condition he was unable to coerce her. By the terms of these two articles, 12 and 13, one rule, in regard to compulsion or coercion, is laid down for all persons alike, whether married women or not. 14. Ignorance of the law.―The fact that an offender is ignorant of the law is not an excuse for any offence committed by him. The doctrine embodied in this article is founded upon the general principle that every person is presumed to know the law. (8) This presumption is so strong that it has been held to be no defence for a foreigner, charged with a crime committed in England, to shew that the act was no offence in his own country, and that he did not know he was doing wrong in doing it in England. (9) And a foreigner, while on board a British ship, which he has entered voluntarily, is as amenable to British law as if he were on British land. (10) Where a defendant was convicted of malicious shooting on the high seas upon an indictment laid under a special statute passed only a few weeks before the offence was committed and of which statute no notice could have reached the place where the shooting (1) 1 Hale, 45; 1 Hawk. P. C., c. 1, s. 9; 4 Bl. Com., 28. (2) Connolly's case, 2 Lewin, 229; 1 Bish. New Cr. L. Com., p.p. 214, 215. (3) (4) 1 Hale, 516. (5) 1 Russ. Cr., 5 Ed., 140; 1 Hawk. P. C., c. 1, s. 11. (6) Rex v. Morris. East. T., 1814, M.S. Bayley, J., & Russ. & Ry., 270. (7) Reg. v. Cruse, 2 M. C. C. R. 53; 1 Russ. Cr., 147. (8) Brown's Leg. Max., 6 Ed., 247 et seq., 4 Bl. Com., 27; 1 Hale, 42; R. v. Crawshaw, Bell 303. Dears C. C. R., (9) Rex v. Esop, 7 C. & P., 456; Barronet's case, 1 E. & B. 1; 51; 1 Russ., 5th Ed., 154. (10) Reg. v. Sattler, Reg. v. Lopez, D. & B. C. C., 525. happened, the conviction was nevertheless considered perfectly legal: although the judges recommended a pardon. (1) In article 21 of this code there is an exception to the general rule that ignorance of the law shall be no excuse; for it is there enacted that "everyone, acting under a warrant or process which is bad in law on account of soine defect in "substance or in form apparent on the face of it, if he in good faith, and, ** without culpable ignorance and negligence, believes that the warrant or "process is good in law, shall be protected from criminal responsibility to the "same extent and subject to the same provisions as if the warrant or process "were good in law; and ignorance of the law shall in such case be an excuse." Ignorance or mistake of fact.—Although ignorance of the law is no excuse, it is otherwise with regard to ignorance or mistake in point of fact, which as a general rule will be a good and sufficient excuse; (2) for a mistake of fact may negative the existence of an evil intent, which is the essence of a crime; so that whenever any one, without fault or carelessness, is, while pursuing a lawful object, misled concerning facts, and acts upon them as he would be justified in doing were they what he believes them to be, he is legally as well as morally innocent. But the rule will not apply if the mistake be made in the course of doing any unlawful act, and therefore if some unintended or unforeseen consequence ensue from an act which in itself is wrongful and unlawful, the actor will be as criminally responsible as if the consequence were intended and foreseen (3) nor will the rule apply if the mistake be due to any negligence or want of due diligence; at least it will not apply so as to exonerate a person entirely. ILLUSTRATIONS. A, in his own house strikes a blow under the mistaken though bona fide belief that he is striking at a concealed burglar, but by this blow he kills B, a member of his own family. A is guilty of no offence (4) B, pretending by way of a practical joke to be a robber, presents an empty pistol at A and demands his money. A, believing that B really is a robber, kills B. A is justified. (5) A kills B, a friendly visitor through negligently mistaking him for a burglar. Although A cannot be convicted of murder he may be convicted of manslaughter by reason of his having negligently failed to acquaint himself with the true state of affairs. (6) And where a physician was indicted for malpractice, it was no defence that he was ignorant of facts with which it was his duty to become acquainted. (7) When a statute makes an act indictable, irrespective of guilty knowledge of some fact connected with it, ignorance of the fact will be no defence. (8) Take the following illustration given by Sir James F. Stephen: "A abducts B, a girl "of 15 years of age, from her father's house believing in good faith and on "reasonable grounds that B is 18 years of age. A commits an offence, although if "B had been 18 years of age she would not have been within the statute." (9) 15. Execution of sentence.-Every ministerial officer of any court authorized to execute a lawful sentence, and every gaoler, and every (1) Rex v. Bailey, Russ. & Ry 1. 24 Bl. Com., 27; 1 Hawk. P. C. Curw. ed., p. 5, 14, note; 1 Bish. New Cr. Law Com., 171. (3) Arch. Cr. Pl., 24; Clarke's Cr. Law, 70. (4) Reg. v. Levitt, Cro. Car. 558; 1 Hale 474; Burbridge Dig. Cr. Law, 40. (5) Hale, P. C. 474; Burbridge Dig. Cr. Law, 41. (6) Hudson v. MacRae, 4 B. & S. 585; Whart. Cr. Law, 8 Ed. 8 89. 17) R. v. Macleod, 12 Cox C. C. 534. See also article 212 post p. (8) Stark. C. P. 196; Sedg. Stat. Law, 2d Ed. 80; R. v. Myddleton, 6 T. R. 739; R. v. Jukes, 8 T. R. 536; Whart. Cr. Law, 2 88. (9) Steph. Dig. Cr. Law, Art. 34; R. v. Prince, L. R. 2 C. C, R. 154. |