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Illustrations.

[(1.) A, in a fit of voluntary drunkenness, shoots B dead, not knowing what he does. A's act is a crime.

(2.) A, under the influence of a drug fraudulently administered to him, shoots B dead, not knowing what he does. A's act is not a crime.

(3.) A, in a fit of delirium tremens caused by voluntary drunkenness, kills B, mistaking him for a wild animal, attacking A. A's act is not a crime.

1 (4) A is indicted for inflicting on B an injury dangerous to life with intent to murder B. The fact that A was drunk when he inflicted the injury ought to be taken into account by the jury in deciding whether A intended to murder B or not.

2 ARTICLE 30.

MARRIED WOMEN.

3 If a married woman commits a theft, or receives stolen goods, knowing them to be stolen, in the presence of her husband, she is presumed to have acted under his coercion, and such coercion excuses her act; but this presumption may be rebutted if the circumstances of the case show that in point of fact she was not coerced.

It is uncertain how far this principle applies to felonies in general.

It does not apply to high treason or murder.

It probably does not apply to robbery.

[R. v. Cruse, 8 C. & P. 546.] R. v. Doherty, 16 Cox, C. C. 306.

S. D. Art. 30. See Appendix, Note 1.

[1 Hale, P. C. 45; 1 Hawk. P. C. 4; R. v. Hughes, 1 Russ. Cr. 147; R. v. Atkinson, 1 Russ. Cr. 141, 154; R v. Smith, D. & B. 553; R. v. Archer, 1 Moody, 143; R. v. Brooks, Dear. 184; R. v. Wardroper, Bell, C. C. 249. As to felonies in general, see 1 Russ. Cr. 139141. As to high treason, murder and robbery, see 1 Hale, P. C. 45; Dalton, c. 157; 1 Hawk. P. C. 4; R. v. Buncombe, 1 Cox, C. C. 183; but as to robbery, see Mr. Carrington's argument in R. v. Cruse, 8 C. & P. 556. In R. v. Torpey, Mr. Russell Gurney, Recorder of London, held that the doctrine applied to robbery, 12 Cox, C. C. 48-9; cf. Draft Code, s. 23. As to misdemeanors in general, see note to R. v. Price, 8 C. & P. 20; and 1 Russ. Cr. p. 145, note (e.), 5th ed.; See too R. v. Torpey, 12 Cox, C. C. 48-9. As to uttering, see R. v. Price, 8 C. & P. 19. As to false swearing, R. v. Dicks, 1 Russ. Cr. 141. As to the general doctrine, see Appendix, Note I. The principle is not affected by the Married Womens' Property Act, 45 & 46 Vict., c. 75.]

[It applies to uttering counterfeit coin.
It seems to apply to misdemeanors generally.

ARTICLE 31.

COMPULSION.

An act which if done willingly would make a person a principal in the second degree and an aider and abettor in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury, or the command of any one not the husband of the offender, do not excuse any offence.

Illustrations.

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3 (1.) A, B, and C, engaged in a rebellion, force D to join the rebel army and to do duty as a soldier by threats of death continuing during the whole of his service. D's act is not a crime.

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(2.) A mob employed in breaking threshing machines force several persons to go with them, and force each person to give each threshing machine a blow with a sledge hammer: A, one of the persons so forced, A's act is not a crime. runs away as soon as he can.

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An act which would otherwise be a crime may in some cases be excused if the person accused can shew that it was done only in order to avoid consequences which could

1 S. D. Art. 31. Draft Code, s. 23.

2 [1 Hale, P. C. 43-4, 49; and see Illustrations.

3 R. v. McGrowther, 18 St. Tr. 394,A. D. 1746).

4 R. v. Crutchley, 5 C. & P. 133. The report says nothing as to the nature of the force. Probably it was by threats of personal violence. It is singular that the law upon this subject should be so very meagre. The subject is treated at some length in 1 Hale, cc. vii., viii., and ix., pp. 43-52, but in a very unsatisfactory way. It would seem that in all common cases the fact that a crime is done unwillingly and in order to avoid injury, ought to affect rather the punishment than the guilt.]

5 S. D. Art. 32.

[not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.

1 The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body.

1 [R. v. Dudley & Stephens, L. R. 14 Q. B. D. 273. In this case the Court commented on the passage in the text, and Lord Coleridge in delivering judgment said (p. 286), “We have the best authority for saying that " my "language was not meant to cover the case then under consideration." I authorized this statement, and on consideration I feel that my language was not vague enough-vague as it was-to represent fully the vagueness of the law. I have slightly altered it, so as to make it more vague. I should have agreed with the rest of the Court had I been a member of it in R. v. Dudley, though not in all the reasoning of the judgment. I should have based my judgment on the fact that the special verdict found only that if the boy had not been killed and eaten, the survivors “would probably not have survived"; and on the principle that in this particular class of cases an error on the side of severity is an error on the safe side. Great danger would be involved in admitting a principle which might be easily abused.

I could not go so far as

to say, as the judgment delivered by Lord Coleridge says, that any case can impose on a man "a duty" (if the word means a legal duty) "not to live but to die." Nor do I agree with what is said on p. 287, which appears to me to base a legal conclusion upon a questionable moral and theological foundation, and to be rhetorically expressed. "It would be a very easy and cheap display of commonplace learning” (it is said with obvious truth) to "quote from" four specified Greek and Latin authors, passage after passage in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics. It is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. Whatever estimate may be formed of self-sacrifice, it seems to me to be a duty of which the law can take no notice, if indeed it is a duty at all, which is not a legal question. I can discover no principle in the judgment in R. v. Dudley. It depends entirely on its peculiar facts. The boy was deliberately put to death with a knife in order that his body might be used for food. This is quite different from any of the following cases-(1) The two men on a plank. Here the successful man does no direct bodily harm to the other. He leaves him the chance of getting another plank. (2) Several men are roped together on the Alps. They slip, and the weight of the whole party is thrown on one, who cuts the rope in order to save himself. Here the question is not whether some shall die, but whether one shall live. (3) The choice of evils. The captain of a ship runs down a boat, as the only means of avoiding shipwreck. A surgeon kills a child in the act of birth, as the only way to save the mother. A boat being too full of passengers to float, some are thrown overboard. Such cases are best decided as they arise. See on the whole subject my History of Criminal Law, II. 108-15. In the United States (U. S. v. Holmes, 1 Wall. Jr. 1, quoted at length in Wharton on Homicide, s. 561), shipwrecked sailors and passengers escaping in a boat which could not hold all, the sailors threw some of the passengers overboard. The Court held that the passengers ought to have bee 1 preferred to the sailors, unless

1

Illustrations.

[(1.) 1 A, the Governor of Madras, acts towards his council in an arbitrary and illegal manner. The council depose and put him under arrest, and assume the powers of government themselves. This is not an offence if the acts done by the council were the only means by which irreparable mischief to the establishment at Madras could be avoided.

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(2.) A and 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. This is not a crime.

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3 ARTICLE 33.

IGNORANCE OF LAW.

The fact that an offender is ignorant of the law is in no case an excuse for his offence, but it may be relevant to the question whether an act which would be a crime if accompanied by a certain intention or other state of mind, and not otherwise, was in fact accompanied by that intention or state of mind or not.

5 In interpreting a statute which makes unlawful a continuous act which till the statute passed was not unlawful, it is to be presumed that the legislature intended to allow a reasonable time for the discontinuance of the act so made unlawful, and the ignorance of the accused that the statute had been passed is a fact relevant to the question whether his discontinuance of it was within such reasonable time or not.

[the presence of the sailors was required for the common safety, but "under any circumstances it was held the proper method of determining who was to be the first victim out of the particular class was by ballot." I doubt whether an English Court would take this view. It would be odd to say that the two men on the raft were bound to toss up as to which should go.

1 R. v. Stratton & Others, 21 St. Tr. 1045; sec Lord Mansfield's judgment, pp. 1222-6. 2 Bacon's Maxims, No. 5.]

3 S. D. Art. 33.

4 [Draft Code, s. 24.] R. v. Mailloux, 3 Pugs.493.

5 [See Illustration (3). See also Thompson v. Farrer, L. R. 9 Q. B. D. 372.

Illustrations.

[(1.) 1A, a foreigner unacquainted with the law of England, kills B in a duel in England. A's act is murder, although he may have supposed it to be lawful.

(2.) 2 A, a poacher, sets wires for game, which are taken by B, a gamekeeper, under the authority of an Act of Parliament (5 Anne, c. 14, s. 4), of the existence of which A is ignorant. A forcibly takes the wires from B, and is tried for robbery. His ignorance of the Act is relevant to the question whether he took the wires under a claim of right.

(3.) A is in command of a ship on a voyage, which during its continuance is rendered unlawful by the passing of the kidnapping Act, 1872 (35 & 36 Vict. c. 19), but A was not aware that the Act had been passed till a considerable time afterwards, and he continued his voyage in ignorance of the Act. The fact of A's ignorance is relevant to the question whether the particular voyage in which A was engaged was one to which the Act was intended by the legislature to apply.

4 ARTICLE 34.

IGNORANCE OF FACT.

An alleged offender is in general deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.

When an offence is so defined by statute that the act of the offender is not a crime unless some independent fact co-exists with it, the court must decide whether it was the intention of the legislature that the person doing the forbidden act should do it at his peril, or that his ignorance as to the existence of the independent fact, or his mistaken belief in good faith and on reasonable grounds that it did not exist, should excuse him.

Voluntary or negligent ignorance of any such fact is no excuse for any such offence.

1[Ex parte Barronet, 1 E. & B. 1.

2 R. v. Hall, 3 C. & P. 409. In R. v. Reed, Car. & Mar. 303, Coleridge, J., said: "Ignorance of the law cannot excuse any person, but at the same time when the question is with what intent a person takes, we cannot help looking into his state of mind, as if a person takes what he believes to be his own it is impossible to say he is guilty of felony." 3 Burns v. Nowell, L. R. 5 Q. B. D. 444.]

4S. D. Art. 34.

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