shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any felony or offence other than that for which the pardon was granted.

ARTICLE 22.

COMMUTATION OF SENTENCE.

The Crown may commute the sentence of death, passed upon any person convicted of a capital crime, to imprisonment in the penitentiary for life, or for any term of years not less than two years, or to imprisonment in any other gaol or place of confinement for any period less than two years, with or without hard labor; and an instrument under the hand and seal-at-arms of the Governor General, declaring such commutation of sentence, or a letter or other instrument under the hand of the Secretary of State, or of the Under Secretary of State, shall be sufficient authority to any judge or justice, having jurisdiction in such case, or to any sheriff or officer to whom such letter or instrument is addressed, to give effect to such commutation, and to do all such things and to make such orders, and to give such directions, as are requisite for the change of custody of such convict, and for his conduct to and delivery at such gaol or place of confinement or penitentiary, and his detention therein, according to the terms on which his sentence has been commuted.

ARTICLE 23.

UNDERGOING SENTENCE EQUIVALENT TO A PARDON.

2 When any offender has been convicted of an offence not punishable with death, and has endured the punishment to which such offender was adjudged, or if such

1 R.S.C. c. 181, s. 40.

2 R.S.C. c. 181 s. 41; 9 Geo. 4 c. 32 s. 3.

offence is punishable with death and the sentence has been commuted, then if such offender has endured the punishment to which his sentence was commuted, the punishment so endured shall, as to the offence whereof the offender was so convicted, have the like effect and consequences as a pardon under the Great Seal; but nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any other offence.

1

When any person convicted of any offence has paid the sum adjudged to be paid, together with costs, under such conviction, or has received a remission thereof from the Crown, or has suffered the imprisonment awarded for non-payment thereof, or the imprisonment awarded in the first instance, or has been discharged from his conviction by the justice of the peace in any case in which such justice of the peace may discharge such person, he shall be released from all further or other proceedings for the same cause.

1R.S.C. c. 181 s. 42; 24 & 25 Vict. c. 96 s. 109, c. 97 s. 67.

CHAPTER IV.

1 GENERAL EXCEPTIONS.

2 ARTICLE 24.

DEFINITIONS SUBJECT TO EXCEPTIONS.

[EVERY definition hereinafter contained of any crime is subject to the following general exceptions, except in the cases in which the contrary is expressed :

3 ARTICLE 25.

CHILDREN UNDER SEVEN.

No act done by any person under seven years is a crime.

5 ARTICLE 26.

CHILDREN BETWEEN SEVEN AND FOURTEEN.

of age

No act done by any person over seven and under fourteen years of age is a crime, unless it be shewn affirmatively that such person had sufficient capacity to know that the act was wrong

7 ARTICLE 27.

INSANITY.

8 No act is a crime if the person who does it is at the

[See 2 Hist. Cr. Law, chaps. xviii, xix., pp. 94-186. See Draft Code, Pt. III. ss. 19-70.] S. D. Art. 24.

S. D. Art. 25.

4 [1 Hale P. C. 27-8; 1 Russ. Cr. 103; Draft Code, s. 20.]

5 S. D. Art. 26.

6

[R. v. Owen, 4 C. & P. 236; and see cases collected 1 Russ. Cr. 108-113; Draft Code, s. 20.] 7 S. D. Art. 27.

8 [The whole subject is discussed at full length in 2 Hist. Cr. Law, ch. xix. pp. 124-196. Cf. Draft Code, s. 22.]

[time when it is done prevented (either by defective mental power or) by any disease affecting his mind.

or.

(a.) from knowing the nature and quality of his act;

2

(b.) from knowing that the act is wrong; (or,

(c.) from controlling his own conduct, unless the absence of the power of control has been produced by his own default.)

But an act may be a crime although the mind of a person who does it is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act.

Illustrations.

(1.) A kills B under an insane delusion that he is breaking a jar. A's act is not a crime.

(2.) A kills B knowing that he is killing B, and knowing that it is wrong to kill B; but his mind is so imbecile that he is unable to form such an estimate of the nature and consequences of his act as a person of ordinary intelligence would form. A's act is not a crime if the words within the first set of brackets are law. If they are not, it is.

(3.) A kills B knowing that he is killing B, and knowing that it is illegal to kill B; but under an insane delusion that the salvation of the human race will be obtained by his execution for the murder of B, and that God has commanded him (A) to produce that result by those means. A's act is a crime if the word "wrong" has the second of the two meanings ascribed to it in the note. It is not a crime if the word "wrong" has the first of those two meanings,

(4.) A suddenly stabs B under the influence of an impulse caused by disease, and of such a nature that nothing short of the mechanical restraint of A's hand would have prevented the stab. A's act is a crime if (c.) is not law. It is not a crime if (c.) is law.

(5,) A suddenly stabs B under the influence of an impulse caused by

1 [The parts of the Article in parentheses are doubtful.

2 The word "wrong" is variously interpreted as meaning ;-1. Morally wrong. 2. Illegal. The practical effect of these differences is shown in Illustrations (4), (5), and (6).

* In extreme strictness this ought to be, "If the word 'wrong' has the first of these two meanings, the criminality of the act would depend upon the question whether the jury thought that God's command under the circumstances altered the moral character of the act."]

D

[disease, and of such a nature that a strong motive, as, for instance, the fear of his own immediate death, would have prevented the act. A's act is a crime whether (c.) is or is not law.

(6.) A permits his mind to dwell upon and desire B's death; under the influence of mental disease this desire becomes uncontrollable, and A kills B. A's act is a crime whether (c.) is or is not law.

(7.) A, a patient in a lunatic asylum, who is under a delusion that his finger is made of glass, poisons one of his attendants out of revenge for his treatment, and it is proved that the delusion had no connection whatever with the act. A's act is a crime.

2

1 ARTICLE 28.

PRESUMPTION OF SANITY.

Every person is presumed to be sane, and to be responsible for his acts. The burden of proving that he is irresponsible is upon the accused person; but the jury may have regard to his appearance and behavior in court.

3 ARTICLE 29.

4

DRUNKENNESS.

Voluntary drunkenness is not regarded as a disease affecting the mind within the meaning of Article 27; but involuntary drunkenness, and diseases caused by voluntary drunkenness, fall, so far as they affect the mind, within that Article.

If the existence of a specific intention is essential to the commission of a crime, the fact that an offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention.

1 S. D.Art. 28.

2 [R. v. Oxford, 9 C. & P. 525; R. v. Stokes, 3 C. & K. 185; Draft Code, s, 22;] R.v. Riel,

2 Man. L. R. 321.

3 S. D. Art 29.

4 [1 Hale, P. C. 32-3. Illustrations (1), (2), and (3) are founded on this passage.]