iiiiiiiiiiiiiiiiiiii; nmmi OlnrnHl ICam i>rl^oal Htbratg KD JSBbS ""'™"">' "*"'" * ^S!f,'rJ9.P.,.9.'„.P?S6s illustratve of En II 3 1924 021 721 422 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924021721422 SELECTION OF CASES ILLUSTRATIVE OF ENGLISH CBIMINAL LAW. aonDon: C. J. CLAY and SONS, CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, AVE MARIA LANE, AND STEVENS AND SONS, Ltd, 119 AND 120, CHANCEEY LANE. ©laasofa: 50, WELLINGTON STREET. ILeipjiB : F. A. BBOCKHA.UB. aeiu gorit: THE MAr nvTTT.T.AT J COMPANY. Bom6ag: B. SETMOUE HALE. [All Rights reserved.] SELECTION OF CASES ILLUSTRATIVE OF ENGLISH CEIMINAL LAW BY COURTNEY STANHOPE KENNY, LL.D. OF LINCOLN'S INN, BARBISTBR-AT-LAW ; READER IN ENGLISH LAW IN THE UNIVERSITY OP CAMBRIDGE. CAMBRIDGE: AT THE UNIVERSITY PRESS. 1901 CDainiiriliae : PRINTED BY J. AHD u. V. CLAY, AT THE UNIVEESITY PRESS. PREFACE. npHE increased attention which, of recent years, has been -*- bestowed, both in England and in the United States, upon the methods of legal education, has caused a fuller recognition of the great value which case-law possesses for even the elementary student. Only by means of concrete cases can he give vividness and reality to the abstract principles which be learns from his text-books, or even form a clear idea of the way in which questions, whether of law or of fact, are handled in everyday practice by our courts of justice. But, valuable though this part of his legal training is, it is the part in which he most needs direction. Elementary students who read the Reports under their own guidance are prone to reverse the true order of things, by attending to the names of cases rather than to their facts, and to the facts rather than to the principles decided. Even when the principle itself is sought for, it is too often sought only by the compendious method of perusing nothing of the case beyond the head note ; a plan of study which combines the disadvantages of reading case-law with those of reading text-books. And even a student whose greater assiduity has saved him from these errors is often led, by a natural inclination for reading recent cases in preference to older ones, to waste his time upon the study of decisions that are concerned only with some refined limitation of a fund- amental doctrine, when he has not yet become acquainted with the cases in which that broad doctrine itself is established. K. h yi Preface. These facts have often been forced upon my attention in the course of twenty-five years' experience as a law-lecturer at Cambridge ; an experience which has also afforded me oppor- tunities of observing what portions of our case-law are best adapted to arouse the attention and impress the memory of students in their early days of difficulty, when legal phrases and principles have not yet ceased to be unfamiliar and un- inviting. In order to obtain such cases, I have gone to a variety of sources; not limiting myself to the decisions of the Courts of Criminal Appeal, or to modern decisions, or even to English ones. I have preferred short cases ; any longer ones I have usually abridged. To beginners, at any rate, I hope the volume will be of service in affording brief and yivid illustrations of the practical working of the English CrimiuRl Law. The compilation of the book would have been impossible but for the permission which the Incorporated Council of Law Eeporting generously conceded to me, to make use of tbeir Reports ; a permission for which my most cordial thanks are due. I must also thank the proprietors of the copyright of Mr Cox's Criminal Law Reports, for allowing me to take several cases from their series. To my friend and former pupil, Mr W. C. A. Landon, of Gray's Inn, I am indebted for assiduous assistance in preparing the volume and carrying it through the press. And to the kindness of Professor Maitland I owe the admirable English rendering in which the cases cited here from the Year Books— except one or two added by myself after he had gone abroad — are made acceptable to modern e\es. Downing College, Cambeidgb. July, 1901. INDEX OF CASES. A. PAGE R. V. Atwood PAGE 540 R V. Lord Abingdon 440 Aveson v. Lord Kinnaird 498 R. V. Aitken 315 R. V. Ayes 113 R V. Alice 41 R. V. Allen 423 B. R. V. Almon 38 R. V. Bailey 29 R. V. Amier 220 R. V. Baker 419 Anonymous :— R. V. Barnard 333 (2 Camngton and Payne) 469 Barrow v. Lewellin 437 (Coke) 449 R. V. Bateman 191 (Dalton) Sll B. V. Baynes 165 (East's P.O.) 284 R. V. Bazeley 305 (Foster) 27 Beale v. Carter 146 (Hale's P.O. I.) 449 Beatty v. Gillbanks 392 ( 11.) 467 R. 1!. Bedingfield 501 (Kelyng) 66 The State v. Bell 55 ( » ) 79 R. V. Bennett 98 ■( „ ) 176 Bennett v. Clough 461 ( ., ) 217 R. V. Birdseye 481 (Lib. Ass. ann. 2Q) 137 R. V. Churchwardens of Birmingham 512 \ jj )> 27) 64 R. V. Birt 387 \ ?5 JJ ») 219 R. V. Blenkinsop 193 \ )) JJ 43) 141 R. V. Boden 282 (Salkeld) 1 Boldron v. Widdows 479 (Year Book, 2 Edw. 3) 92 R. V. Borrett 461 ( 7 Hen. 6) 253 R. V. Bourne 115 ( 18 Edw ■ 4) 249 Commonwealth v. Bowen 91 ( 3 Hen. 7) 41 R. V. Boyes 535 ( 14 Hen 7) 20 R. V. Bradford 2 ( 21 Hen 7) 43 R. V. Bradshaw 131 R. V. Ardley 331 B. V. Brown 112 R. V. Ashwell 292 B. 1). Bruce 136 Atcheson v. Everitt 4 B. v. Bryan 328 Attorney General v. Bradlaugh 7 R. V. Bunkall 231 &2 VIU Index of Cases. R. V. Burford PAGE 436 R V. Dudley PAGE 61 R. V. Burton (I) 50 R. V. Dufiy 379 (H) 122 R. V. Dyson 89 R. V. Butler 217 R. V. Button 342 E. C. R. V. Edwards 247 The Carrier's Case 223 R. V. Egginton 260 Carver v. Pierce R. V. Cassy 238 169 R. R. V. Ellis V. Inhabitants of Eriswell 481 495 R. V. Caton 119 R. V. Errington 104 Causey v. State 281 F. R. V. Chappie 82 R. V. Charnoch 379 R. V. Faulkner 152 R. (/. Cheeseman 85 R. V. Featherstone 274 R. u. Cherry 218 R. v. Fenton 117 R. V. Chissers 217 R. V. Finney 120 R. V. Closs 184 Doe dem. Fleming v. Fleming 458 Clutterbuck v. ChaflFers 438 R. V. Foley 241 Cockcrofl V. Smith 149 The Forester's Case 238 R. V. Cooper (I) 138 R. v. Forster 142 - ,, (11) 333 R. V. Foster 417 (HI) 470 R. V. FouLkes ^ 309 The State v. Cooper 176 R. V. Francis 492 R. V. Cope 410 R. V. Franklin 118 Coppen V. Moore 454 R. V. Frost 374 Cotton 0. James 510 R. V. Fursey 384 R. V. Cresswell 460 R. V. Crowhurst 470 G. R. V. Crump 284 R. V. Gale 316 R. V. Cruse 66 R. V. Gamlen 54 R. u. Cullum 311 R. V. Gardiner 178 R. V. Curgerwen 426 R. V. Gibbons 524 R. V. Gibson 475 D. R. V. Gilbert 353 R. V. Dalloway 134 R. V. Gill 398 R. V. Damaree 371 R. V. Gloster 518 R. V. Daniel 2 R. V. Gordon 326 R. V. Dant 126 R. V. Great North of England R. V. Davis (I) 160 Ry Co. 69 (11) 172 Green v. Goddard 147 R. V. Davitt 380 R. V. Grey 105 R. V. De Berenger 399 R. V. Griffith 73 R. V. Dingley (or Bingley) 177 K. V. Gruncell 359 R. V. Dobbs 176 United States v. Guiteau 48 R. ■». Driscoll 151 Keepers of the Liberties of Eng- Du Bost V. Beresford 497 land V. Gwinn 416 Index of Cases. IX H. R. V. Haines PAGE 167 R. V. Hall 280 R. V. HaUoway 103 R. V. Hammond 411 The State v. Hardie 123 The Harlot's Case 92 R. V. Harris (I) 154 (II) 163 R. 0. Harrison 274 R. V. Hart 441 R. V. Harvey 214 R. u. Hassall 227 R. V. Haynes 52 R. V. Hayward 321 R. V. Hazelton 336 R. V. Hazy 471 R. ■;;. Hehir 300 R. V. Hench ■ 264 R. v. Hensey 369 R. 1!. Hewlett 150 R. V. Hickman 93 R. V. Higgins 83 R. V. HiU 208 R. V. Hilton 133 R. V. Hobson 453 R. V. Hodgson 202 R. V. Hoggins 314 R. V. Holden 418 R. V. Holland 93 R. V. HoUoway (I) 285 (II) 288 R. V. Governor of Hollo way Prison 229 R. V. Hook 422 R. V. Horsey 109 Hoskins v. Tarrance 239 Howel's Case 139 R. V. Huggins 35 R. V. Hughes 173 R. V. Hull 125 R. V. Hunt 388 J. R. V. Jackson (I) 235 (11) 421 R. V. James (I) 39 (II) 81 K. V. Jarvis 525 R. V. Jenkins 515 R. ■;;. Jennison 324 R. V. Johnson (1) \*^x » (II) 498 JoUey V. Taylor 494 R. V. Jones (I) 28 II (II) 200 » (III) 237 (IV) 322 (V) 428 R. (J. Journeymen Tailors of Cambridge 404 K. R. V. Kennett 396 R. V. Kew 135 R. u. Kilham 347 R. V. Knight 130 R. V. Knight and Roflfey 177 R. V. Langley 437 R. V. Langmead 464 R. V. Lapier 222 R. 0. Latimer 144 R. V. Lee 323 Le Mott's Case 169 R. V. Leonin 143 R. V. Levett 26 R. V. Lewis 195 R. V. Lillyman 503 Lincoln v. Wright 490 R. V. Lloyd 527 R. V. Lowe 132 M. R. V. Macdaniel (I) 97 (II) 259 McDonnell v. Evans 492 R. V. M'Grath 262 R. V. M'Growther 56 R. V. M'Kearney 166 R. 0. Macklin 100 R. V. M'Naughten 43 R. V. Maddy HI Index of Gases. PAGE PAGE Makin v. Att. Gen. for New R. V. Partridge 469 South "Wales 485 The Case of Peacocks 250 Maltby w. Christie 506 R. 0. Pembliton 157 E. 1}. Manley 78 R. V. Perry 245 E. V. Manning 446 R. v. Peters 279 E. V. Marcus 205 E. V. Pinchbeck 355 E. V. Markuss 124 R. V. Pitman 213 E. V. Martin (I) 137 Commonwealth v. Presby 13 (11) 161 Lord Preston's Case 377 (HI) 199 Poole V. Dicas 514 (IV) 339 E. V. Pratt 542 (V) 344 Price V. Earl of Torrington 514 E. V. Masters 319 R. V. Prince 21 E. V. Mastin 77 Hugh Pyne's Case 377 E. V. Mead 519 E. V. Pywell 409 Mead ij. Young 197 R. E. V. Meakin 54 E. V. Medland 236 E. V. Reed 287 E. V. Middleton 266 E. v: Eees 133 E. 11. MiUs 340 A Eesolution 164 Commonwealth v. Mink 110 ji 173 Monson v. Tussaud's Ltd. 434 » 249 Morris v. MiUer 459 Eeynolds v. United States 31 E. V. Munslow 432 E. V. Richards 2 E. V. Murphy 338 E. V. Richardson 448 E. V. Murray 318 E. V. Rigmaidou 122 E. V. Eiley (I) 179 N. (11) 289 E. 1). Nattrass 156 E. 1). Eing 88 E. V. Neale 394 E. V. Eitson 188 E. V. Negus 306 E. V. Eoberts 409 E. V. Nehuff 1 E. V. Eobinson 357 Neile v. Jakle 509 E. V. Eose 140 E. V. Neill 483 E. V. Eough 250 E. V. Newman 438 E. V. Eowiand 415 E. V. Nutbrown 164 E. V. Eowton 528 E. V. Eussell 349 0. E. ■0. Rust 174 O'Neill V. Reed 508 Osborn v. Veitch 150 S. E. V. Owen 42 R. V. Salisbury 102 P. Samson v. Yardley 494 E. V. Saunders 81 Parkin v. Moon 491 E. V. Sawyer 94 Parmiter v. Coupland 444 E. V. Scully 139 R. V. Parnell 412 R. V. Searing 244 E. V. Parsons 408 R. V. Sern^ 106 Index of Cases. XI R. V. Seward E. V. Sharpleas Sherras v. De Rutzen E. V. Shickle K f. Simson E. y. Slingsby Small's Case E. V. Smith (I) (11) (HI) (IV) (V) R. «;. Starling E. V. Stewart R. u. Streeter R. V. SuUens R. V. Sullivan R. V. Sv/indall T. E. V. Thistlewood Thomas v. David E. V. Thompson (I) (11) (HI) Thompson v. Trevaniou E. V. Thorp E. V. Thurbom E. V. Tolson E. u. Towers E. V. Townley E. V. Turner E. V. Tyler PAGE 405 212 32 251 219 452 143 65 168 186 214 509 403 354 367 320 116 74 372 544 163 221 521 497 404 276 15 95 255 474 57 U. Usill v. Hales PAGE 442 V. E. V. Vaughan Vertue v. Lord Olive 375 401 E. V. Villensky E. V. Vincent 360 391 W. E. V. Wade 283 E. V. Walker 450 E. V. Walsh 220 Warren v. Greenville 511 E. V. Wenmouth 166 Wheeler v. Whiting R. V. Wild 148 116 E. V. Wiley E. V. Wilkes 361 541 R. V. Wilkinson 253 R. V. Williams (I) 265 (11) WiUiams v. E. India Co. 322 472 Williams v. limes 507 E. V. Willshire 429 E. V. Wilson (I) 209 (11) R. V. Wilson and Martin 313 348 R. V. Withers 534 R. 1). Woodward 364 Y. R. V. Yend 468 E. V. Yewin 543 CONTENTS. PAET I. GENERAL PRINCIPLES OF CRIMINAL LIABILITY. SECTION I. THE DISTIKCTION BETWEEN CIVIL AND CRIMINAL WRONGS. PA Criminal proceedings distinguished from actions of contract ........ actions of tort ........ penal actions ........ SECTION II. THE MENTAL ELEMENT IN CRIMINAL LIABILITY. The degree of Mens Rea usually requisite 13 Ignorance ...... 26 A lesser Mens Rea sometimes sufficient 32 Master and Servant .... 35 Infancy 41 Insanity 43 Intoxication . 54 Duress . 56 \Necessity QJoverture 61 64 Corporations . 69 xiv Contents. SECTION III. MODES OF PAETICIPATION IN A CEIME. PAGE Principals in first and second degrees . . . . . 73 Accessory before the fact .... .78 Accessory after the fact . . . • 82 SECTION IV. INCHOATE CRIMES. Incitements . . ....... 83 Attempts .......... 85 PART II. DEFINITIONS OF PARTICULAR CRIMES. SECTION I. SUICIDE . . . • . 89 SECTION II. MUEDEE AND MANSLAUGHTEE. Chapter I. The External Act. The King's Peace . . 91 The cause of death ....... 92 Chapter II. The Mental State in Murder. (A) Intent to kill 100 (B) Intent to do unlawful and dangerous act . 103 (C) Unlawful and dangerous excess in lawful act . 105 (D) Intent to commit a felony . . , . . 106 Contents. X7 Chapter III. The Mental State in Mansladghtee. (A) Intent to kill or do grievous bodily harm, but on sudden provocation . , . . \\\ (B) Intent merely to hurt . . . . Hg (C) Mere negligence . . . . 120 SECTION III HOMICIDES THAT ABE NOT CBIMES . . 136 , SECTION IV. STATUTORY OFFENCES AGAINST THE PEESON . 144 SECTION V. COMMON ASSAULTS ... 146 SECTION yi. MALICIOUS OFFENCES AGAINST PROPEETY . 152 SECTION VII. BURGLARY. Chapter I. The Place Chapter II. The Breaking Chapter III. The Entry . Chapter IV. The Intent . SECTION VIII. HOUSEBEEAKING 160 165 172 175 179 SECTION IX. FOEGERY. Chapter I. The Instrument 1"9 Chapter II. The Forging Chapter III. The Intent 188 202 xvi Contents. SECTION X. LAECENY. Chaptee I. Taking. ^^"^ Actual change of possession ... .211 Constructive taking, by a custodian . . . . 216 Chapter II. Carrying away . . . . . ■ 218 Chapter III. Appropriation by Bailees. At common law (bailees breaking bulk) . . . 223 Statutory larceny by bailees . . . . . . 227 Chapter IV. The Subject-matter. Chattels savouring of Realty . . . . . 238 Chattels severed from Realty . . . . . 241 Chapter V. The Value 244 Chapter VI. Belonging to some other person. Ownerless things ........ 249 Ownership of animals ....... 249 Ownership created by the theft itself .... 255 Chapter VII. The Claim of Right. Consent of Owner ........ 259 Consent obtained by trick or mistake .... 264 Claim as a Finder • . 276 Claim to be Owner ....... 280 Chapter VIII. The Intention. Intention to appropriate ...... 284 Delivery under Mutual Mistake ..... 292 SECTION XI. EMBEZZLEMENT. Unknown at Common Law ...... 304 The Statutory offence : — Chapter I. Who is a Servant? ..... 306 Chapter II. What can be Embezzled? . . . . 31 1 Chapter III. Proof of Appropriation .... 322 Contents. xvii SECTION XII. FALSE PBETBNCES. Chapter I. Thb Mere Pretence. Pretence or Promise Pretence as to Intention Puffing .... Implied pretences . Chapter II. The Obtaining Chapter III. The Right Obtained. Ownership must pass ..... And not merely conditionally Chapter IV. The subject-matter of the Right 323 326 323 333 339 347 349 355 SECTION XIII. EECEIVING STOLEN GOODS 359 SECTION XIV. HIGH TEEASON. Compassing the King's death Levying war against the King Adhering to the King's enemies What constitutes an Overt act 369 370 375 377 SECTION XV. TEEASON-FELONY 379 SECTION XVI. EIOT AND UNLAWFUL ASSEMBLY. Riots at Common Law and Riots by Statute Riot distinguished from Unlawful Assembly What renders an Assembly unlawful . Magistrates' powers and duties . . . • 384 387 388 394 XVIU Contents. SECTION XVII. CONSPIBACY. Mere agreement suffices . . . . The unlawful act agreed upon How conspiracy is proved . . . . SECTION XVIII. PEEJUEY. Origin of the crime Must be committed in judicial proceedings . Materiality of the false statement. How perjury is proved .... SECTION XIX. BIGAMY . SECTION XX. LIBEL. The nature of a libel . Peculiarities of Criminal libel Absolute privilege . Qualified privilege . Functions of Judge and of jury PAGE 398 399 408 415 416 418 421 423 432 436 440 441 444 PART III. MODES OF LEGAL PROOF. SECTION I. PEE SUMPTIONS. (A) Against commission of any Crime (B) Against immorality .... (C) Omnia praesuTnuntur riti esse acta (D) Of intending natural consequences of act (E) Of continuance of existing state of things (F) From possession of recently stolen goods 446 458 460 463 464 464 Contents. SECTION II. THE BURDEN OF PROOF. Is usually on affirmant ........ Except in accusations of a negative crime .... SECTION III. EVIDENCE. Chapter I. The Importance op observing the Rules of Evidence Chapter II. The Relevancy op Evidence. Evidence confined to points in issue Evidence of other crimes is sometimes relevant Chapter III. Leading Questions Chapter IV. Proof of Writings Chapter V. Hearsay. Hearsay inadmissible ..... Exceptions : 1. Complaints ..... 2. Admissions ..... 3. Statements made against interest 4. Statements made in course of duty . 5. Dying declarations . Chapter VI. Confessions . Chapter VII. Eviden^ce of Character Chapter VIII. Privilege . Chapter IX. Accomplices Chapter X. Discrediting a witness . XIX PA6E 471 471 475 479 481 490 492 494 503 506 511 514 515 621 528 534 539 543 SELECT CASES ON CRIMINAL LAW. PART I. GENERAL PRINCIPLES OE CRIMINAL LIABILITY. SECTION I. THE DISTINCTION BETWEEN CIVIL AND CRIMINAL WRONGS. [Damnum sine injuria.^ ANONYMOUS. King's Bench. 1695. 3 Salkkld 187. An indictment for scolding was quashed, because it was not said to have been ad magnam, perturbationem pads. [Breach of Contract.] REGINA V. NEHUFF. Qdebn's Bench. 1706. 1 Salkbld 151. Motion for a certiorari to remove an indictment found at the Old Bailey for a client. The defendant had borrowed £600 from a feme covert, and promised to send her some fine cloth and gold dust as a pledge. He sent no gold dust but some coarse cloth worth little or nothing.... The Court granted a certiorari; because the fact was not a matter criminal (for it was the prosecutor's fault to repose such a confidence in the defendant), and it was an absurd prosecution. 2 Select Cases on Criminal Lam. [pabt i. \Breach of Contract.^ REX V. BRADFORD. King's Bench. 1697. 3 Salkeld 189. The defendant was indicted for not curing the prosecutor of an ulcerated throat, as he had agreed and undertaken to do. Quashed by Rokeby and Turton, J.J. ; for 'tis no public offence, and no more in effect than an action on the case. [Tort] REGINA V. DANIEL. Queen's Bench. 1704. 3 Salkeld 191. The defendant was indicted for enticing an apprentice to depart from his master and absent himself from his service Holt, C. J., held that the seducing an apprentice to absent him- self was not indictable, because it doth not affect the public And afterwards, in Trinity Term, it was adjudged that an indict- ment would not lie for seducing an apprentice to leave his master; but only an action on the case. [See also Reg. v. Cheeseman, infra.] [Tort committed by many against m.any.] REX V. RICHARDS. King's Bench. 1800. 8 Durnford and East 634. This was an indictment against six defendants for not repairing a private road constructed by virtue of an Act of Parliament for draining and dividing a certain moor, called King's Sedgemoor, in the county of Somerset... The defendants pleaded not guilty. On the trial at the assizes at Bridgewater, before Grose, J., the jury found a special verdict, in substance as follows : — That the commissioners named in the said SECT. I.] Rex V. Richards. 3 Act by their award set out the said private road and drove-way as described in the indictment; that the commissioners directed that it should be for the use of the several owners of the tenements of the nine parishes mentioned in the indictment; and that it should be repaired by the several owners of the tenements in six of those parishes. That the said road was ruinous and out of repair : That the six defend- ants are severally and respectively owners of certain tenements in the said several six parishes or hamlets. ...That the defendants had not repaired the said drove- way.... That there are five hundred tenements in the said nine parishes, of which the owners are entitled to tlie use of the said drove-way. ...And two hundred and fifty owners of tenements in the said six parishes. ...That from the time of making the said award, all persons willing to pass and repass over the said drove-way, have at their free will and pleasure passed and repassed over the same on foot, and with cattle and carriages at all times when the same has been passable : That the said drove- way communicates at both ends with the king's highway When this case was called on, for argument, the Court of King's Bench asked the prosecutor's counsel on what ground it could be contended that this was an indictable offence, the road in question being only a private road. Praed, for the prosecutor, answered, That this, though a private road, was set out by virtue of a public Act of Parliament, under which the defendants were directed to repair it; that consequently the not repairing was a disobedience to a public statute, and therefore the subject of an indictment. That this non-repair might be considered to a certain degree as concerning the public... because it appeared by the special verdict that there were no less than 250 persons who were liable to the repair of this road, and the difficulty of suing so many persons together was almost insuperable. But the Court interposed, and said that, however convenient it might be that the defendants should be indicted, there was no legal ground on which this indictment could be supported. That the known rule was, that those matters only that concerned the public were the subject of an indictment ; and the road in question, being described to be a private road, did not concern the public, nor was of a public nature, but merely concerned the individuals who had a right to use it. That the question was not varied by the fact that many individuals were liable to repair ; or by the fact that many others were entitled to the benefit of it, for each party injured might bring his action against those on whom the duty was thrown. That the circumstance of this road having been set out under a public Act of Parliament, 1—2 4 Select Cases on Criminal Law. [paet i. did not make the non-repair of it an indictable oflFence; for many public Acts are passed which regulate private rights, but it never was conceived that an indictment lay on that account for an infringement of such rights. That here the Act was passed for a private purpose, that of dividing and allotting the estates of certain individuals. That even if it were true that there was no remedy by action, the con- sequence would not follow that an indictment could be supported ; but, in truth, the parties injured had another legal remedy [i.e. by action]. Judgment for the defendants. \_Penalty sued for by a private iv/ormer.J ATCHESON V. EVERITT. King's Bench. 1776. 1 Cowp. 382. This was an action of debt to recover penalties, under the statute 2 Geo. II., c. 24, s. 7, against bribery. Plea, not guilty. Verdict for the plaintiff. On behalf of the defendant, it was moved that there might be a new trial ; because a Quaker had been received as a witness upon his affirmation, and it was objected that, this being a criminal cause, his evidence ought not to have been received. Lord Mansfield. I wish that, when the Stat. 7 and 8 Wm. III., c. 34, was made, the affirmation of a Quaker had been put on the same footing as an oath, in all cases whatsoever : and I see no reason against it, for the punishment of the breach of it is the same. In this Act, however, there is an exception to their being admitted as witnesses in criminal causes. The question therefore is, What the statute means by the words "criminal causes"?. ..In cases where an action and an. indictment both lie for the same act, as in assault, imprisonment, fraud, etc., a Quaker is an admissible witness in the action, though not on the indictment. There being no case in point, it is a material circumstance that actions for penalties are to a variety of purposes considered as civil suits ; e.g. they may be amended at common law. To be sure, the action in this case is not given only to recover a penalty but is attended like- wise with disabilities. Therefore, it partakes much of the nature of a criminal cause. Moreover, the offence itself is not merely malum prohibitum, by statute, but it was indictable at common law. SECT. I.] Atcheson v. Everitt. 5 Morris, for defendant. Till the statute 7 and 8 Wm. III., there was no doubt about not receiving a Quaker's affirmation. But that statute, in compliance with the prejudices of this sect, broke in upon the rule of the common law, partly in favour to them, and partly for the general benefit of the subject. At the same time the legislature drew the line, by providing " that nothing should enable the affirmation of a Quaker to be received in any criminal cause'': and another statute, 22 Geo. II., c. 30, sect. 3, says, "in any criminal case." But the Court has already decided that ' cause ' and ' case ' are the same. The question therefore is, Whether the present is a criminal case or not ? Crimes and punish- ments are necessary attendants on each other. Punishment is a legal term, and is understood to be in consequence of some offisnce. The charge against the defendant is a charge of bribery. The statute upon which the action is brought, treats bribery as an ' offence,' throughout, and the person committing it is an 'offender.' Conse- quently it considers bribery as a crime. It will be said, on the contrary, that this action, to recover the penalty prescribed by the statute, is merely a civil action. That is not so. For bribery was a crime at common law : and the penalty given by the statute is only part of the fine due at common law to the public in satisfaction of the offence : besides which, the statute inflicts additional pains and penalties which are also incurred by the judgment. With respect to indictments, and all prosecutions which upon the face of them are manifestly criminal suits, there can be no dispute. The question therefore is, Whether it is the form alone, or the sub- stance, that constitutes a criminal action ? There are two cases to this purpose. In 2 Str. 1219, a rule for quashing an appointoient of over- seers was held to be a civil action, and a Quaker's affirmation of service of the rule admitted accordingly. But in 2 Str. 856, which was the case of an appeal of murder, though the appellant had a right to release the appellee in every stage of the cause, a Quaker's evidence was rejected ; because in substance it was a criminal prosecution. And it matters not whether the offence is of the greatest or least magnitude : If the end of the action is merely damages, a Quaker's affirmation is admissible : but wherever the end is punishment, as in this case, it is not. Here the penalty is not given as damages, but as part of the punishment; and even if it were, still this is a criminal action in respect of the additional pains and disabilities incurred by the judg- ment. And this is an answer to the objection, that if the party were arrested and imprisoned for the penalty, the action so much partakes of a civil suit, that the defendant might be discharged under an Act of insolvency. Por, supposing he could be so discharged, the Insolvent 6 Select Cases on Criminal Law. [part i. Act could not remove the further pains and disabilities. Therefore, both upon the reason of the thing, and the authorities in the books, this is a criminal action, and consequently a Quaker's affirmation is not admissible. Rooke, for plaintiff The great question is, Is this a criminal cause ? The criterion of distinction between a criminal and a civil cause is, the form of the proceeding, not the offence which occasions it. An assault and nuisance may be prosecuted either by action or by indictment ; in the one case, a Quaker's affirmation may be received ; in the other, not. The offence of bribery may be prosecuted either by action or indict- ment. The plaintiff has chosen to prosecute by action, and in so doing he has proceeded civilly, not criminally. This cause is in its form an action of debt for a special cause, at the suit of a private subject. The plaintiff does not sue tarn pro rege quam pro seipso ; he sues in his own name only, and recovers the whole penalty. The declaration states, that the defendant owes the money ; and that though often requested, he refuses to pay. The ground of complaint is, the non-payment of a debt. The action is founded upon that implied contract, which every subject enters into with the State to observe its laws. The plea is, nil debet ; not that the defendant is not guilty. The judgment is to recover the debt ; and the party imprisoned for non-payment may have the benefit of the Insolvent Act. Thus far, then, the whole is merely a civil proceeding. But it is said, there is a disability incurred by the judgment, and therefore it is a criminal proceeding. To this it may be answered, that the disability is no part of the judgment, but only a con- sequence of it : the form of the proceeding is not affected by it. The being restrained from suing for a debt beyond time of limitation, is as much a disability, as the being restrained from voting ; yet there is no doubt but that a Quaker may give evidence to prove a debt to be above six years' standing. Lord Mansfield Is the present a criminal cause? A Quaker appears, and offers himself as a witness ; can he give evidence without being sworn ? If it is a criminal case, he must be sworn, or he cannot give evidence. Now there is no distinction better known, than the distinction between civil and criminal law ; or between criminal prose- cutions and civil actions. Mr Justice Blackstone, and all modern and ancient writers upon the subject, distinguish between them. Penal actions were never yet put under the head of criminal law or of crimes. To make this a criminal cause, the construction of the statute must be extended by equity. It is as much a civil action as an action for money had and received. The legislature, when they excepted to the evidence of Quakers in criminal causes, must be understood to mean SECT. I.] Atcheson v. Everitt. 7 causes technically criminal ; and a different construction would not only be injurious to Quakers, but prejudicial to the rest of the King's subjects who may want their testimony No authority whatever has been mentioned on the other side ; nor any case cited where it has been held that a penal action is a criminal case ; and perhaps the point was never before doubted. The single authority mentioned against receiving the evidence of the Quaker in this case is, an appeal of murder'. But that is only a different mode of prosecuting an offender to death ; instead of proceeding by indictment in the usual way, it allows the relation to carry on the prosecution for the purpose of attaining the same end which the King's prosecution would have had if the offender had been convicted, namely, execution. And therefore, the writers on the law of England class an appeal of murder in the books under the head of criminal cases. Co. Litt. 284, 287. In the ease of Bex v. Turner^ on a motion to quash an appoint- ment of overseers, the Court said, " though the prosecution is in the King's name, the end of it is a civil remedy,'' and very properly allowed the Quaker's affirmation to be read The three other Judges concurred. Rule discharged. [Penalty sued for by a public official.] THE ATTORNEY GENERAL v. BRADLAUGH. Court of Appeal. 188.o. 14 Q.B.D. 667. Information in the Queen's Bench Division by the Attorney General to recover penalties of £500 each against C. Bradlaugh for voting as a member of the House of Commons without complying with the provisions of the Parliamentary Oaths Act, 1866^ 1 2 Str. 856. ' 2 Str. 1219. 3 29 Vict. u. 19, sect. 3. " The oath hereby appointed shall in every Parhament be solemnly and publicly made and subscribed by every member of the House of Peers at the table in the middle of the said House before he takes his place m the said House, and whilst a full House of Peers is there with their Speaker m his place ; and by every member of the House of Commons at the table in the middle 8 ■ Select Oases on Criminal Law. [part i. The information was tried at bar in the Queen's Bench Division, in June, 1884, before Lord Coleridge, C. J., Grove, J., and Huddleston, B., and a special jury.,.. The jury found that the Speaker was sitting in the chair at the time when the defendant made and subscribed the oath ; but that he was sitting for the purpose of preparing or correcting notes which he was about to address to the defendant, and he had not resumed his seat for the purpose of allowing the defendant to make and subscribe the oath. The jury further found that upon the 11th of February, 1884, the defendant had no belief in a Supreme Being, and was a person upon whose conscience an oath, as an oath, had no binding force ; and, that the House of Commons had full cognizance and notice of these matters by reason of the avowal of the defendant. The jury also found that the defendant did not take and subscribe the oath according to the full practice of Parliament ; and that the defendant did not take and subscribe the oath as an oath. Upon these findings the Queen's Bench Division, sitting for the trial at bar, ordered a verdict to be entered for the Crown upon the first, fourth, and fifth counts of the information, for separate penalties of £500.... The Court of Appeal granted a rule for a new trial or to enter judgment for the defendant, on the ground of misdirection and mis- reception of evidence Sir H. James, A.G., and Sir H. Giffard, Q.C. {Sir F. Herschell, S.G., and B. S. Wright, with them), for the Crown. There are two pre- liminary objections to the hearing of this appeal. The first is, tliat the information is a " criminal cause or matter " within the meaning of the Supreme Court of Judicature Act, 1873, s. 47, and therefore that there can be no appeal to this Court. This is an information filed by the Queen's Attorney General in order to recover a penalty; and the nature of informations of that of the said House, aud whilst a full House of Commons is there duly sitting, with their Speaker in his chair, at such hours and according to such regulations as each House may by its Standing Orders direct." Section 5. "If any member of the House of Peers votes by himself or his proxy in the House of Peers, or sits as a peer during any debate in the said House, without having made and subscribed the oath hereby appointed, he shall for every such ofience be subject to a penalty of five hundred pounds, to be recovered by action in onie of Her Majesty's Superior Courts at Westminster ; and if any member of the House of Commons votes as such in the said House, or sits during any debate after the Speaker has been chosen, without having made and subscribed the oath hereby appointed, he shall be subject to a like penalty for every such offence and in addition to such penalty his seat shall be vacated in the same manner as if he were dead. " SECT. I.] The Attorney General v. Bradlaugh. 9 kind was much discussed in Attorney General v. Radloff^. In that case the Court of Exchequer was equally divided ; two of the judges, Piatt and Martin, BB., holding that an information (which in that case was for breach of the laws as to customs), was not a criminal proceeding, and two of them, Pollock, C.B., and Parke, B., holding that it was. It is true that in that case some stress was laid on the fact that the otFender might be summarily convicted befoi-e justices ; but this circumstance was really immaterial ; under 1 1 and 1 2 Vict, c. 43, justices have power to convict summarily for both civil and criminal offences. It is submitted that the view of Pollock, C.B., and Parke, B., was correct, and that informations filed by that Attorney General in order to recover penalties are criminal proceedings. More- over, to consider the question from a different point of view, although the penalty imposed by the Parliamentary Oaths Act, 1866, s. 6, might perhaps have been recovered by an action of debt, nevertheless the wrongful act or defence, of which the defendant has been con- victed, must be deemed to be of a criminal nature ; for by s. -3 of the Parliamentary Oaths Act, 1866, a member of Parliament is liable to be indicted if he does not take the oath of allegiance, and the remedy under s. 5 may be regarded as merely cumulative, Some wrongs are both of a civil and criminal nature, such as libel and assault, and it is erroneous to contend that the existence of a civil remedy causes a wrongful act to become of a civil nature. There is no distinction in principle between this case and Mellor v. Deiiham^ ; the only difference is that in that case the appeal was from the refusal of justices to convict for contravention of the bye-laws of a school board. Mellor v. Denham was followed by Reg. v. Whitechurch^- It is true that the penalty is to be recovered ''by action": Parliamentary Oaths Act, 1866, s. 5 ; but the word "action" is of wide signification, and includes even criminal proceedings ; this is plain from Com. Dig. Action (D. 1) Placita Coronae, and also from Bacon's Abridgment, Actions in General (A.), where it is said that "actions are divided into criminal and civil." These passages are cited and relied upon by the Earl of Selborne, L.O., in Bradlaugh v. Clarke'. The Queen by her prerogative can recover the whole of a penalty in any Court, even although a moiety be expressly given to a common informer : Eex V. Hymen^. Brett, M. R. A majority of the Court are of opinion that the present information is not a "criminal cause or matter" within the 1 10 Ex. 84. ^ 5 Q.B.D. 467. 3 7 Q.B.D. 534. " 8 App. Cas. p. 362. 5 7 T.B. 536. 10 Select Cases on Criminal Law. [part i. meaning of the Supreme Court of Judicature Act, 1873, s. 47 — It has been at diflTerent times during this argument contended before us on both sides, for diflferent purposes, that the 3rd section of the Parlia- mentary Oaths Act, 1866, imposes on every member a legal obligation to take and subscribe the oath, and that, if a member does not take and subscribe the oath in the manner therein set forth, an indictment will lie against him on that section alone as for a misdemeanour, and that the penalty in the 5th section is cumulative. That was at one time argued by the Attorney General in order to shew that the acts complained of in the information were criminal, and that no appeal would lie. It was afterwards argued by the defendant in this case that the same construction should be put upon the statute, for the purpose of shewing, at all events, a great hardship, namely, that the 3rd section would put upon him an obligation to take the oath, and that the 5th section, if construed in the way insisted upon by the Crown, would inflict upon him a penalty of £500, for his voting after he had then taken the oath thus forced upon him. I think that the Act of Parliament must be read as a whole, and tliat the two sections cannot be treated separately ; therefore it seems to me that the true construction of the Act of Parliament is that it imposes a new obliga- tion not known to the common law, and that with regard to a non- performance of that obligation it enacts a certain consequence. Wher- ever an Act of Parliament imposes a new obligation, and in the same Act imposes a consequence upon the non-fulfilment of that obligation, that is the only consequence. Therefore, it seems to me that the only consequence of voting as a member without having taken the oath in the manner appointed is, that the member becomes liable to a penalty. If that be so, no indictment will lie, and, as far as my judgment goes, nothing in the nature of a criminal proceeding can be taken upon this statute. The recovery of a penalty, if that is the only consequence, does not make the prohibited act a, crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between g. penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment. In construing this Act of Parliament I should on that ground alone say that no crime is enacted by this Act. But there is more than that : this penalty of £500 is in the phraseology of this Act of Parliament, to be recovered "by action in one of Her Majesty's superior courts at Westminster.'' Now it may be true to say, as appears from the passage cited from Comyn's Digest (Action D. 1), that in some cases "actions" will include indict- ments or will include criminal informations. In some cases it may SECT. I.] The Attorney General v. Bradlaugh. 11 but the question is whether in this Act of Parliament it does, and when the legislature is found using the words, " by action," that word construed according to its ordinary meaning does not seem to me to include an indictment or a criminal information. But there is more than that. The words are " by action in one of Her Majesty's superior Courts at Westminster." Now, a criminal information never was moved except in the Court of Queen's Bench. An information by the Attorney General was also moved in the Court of Exchequer, but that was a procedure for the purpose of recovering a debt, or for the purpose of rectifying a trespass, or for the purpose of dealing with an injury to the Crown in its particular capacity, and not merely as the repre- sentative of the public. So that this argument seems to me to shew that by the use of the words " by action," and by the still stronger language "in one of Her Majesty's superior Courts" (which mean in any one of Her Majesty's superior Courts) at Westminster, this offence cannot be the subject matter of criminal information, and cannot be the subject matter of indictment ; and that the only proceeding which can be brought upon the statute, as the House of Lords has now deteraiined, is an information filed by the authority of the Attorney General, and in his name, such as was formerly brought generally on the revenue side of the Court of Exchequer. Now comes the question whether an information by the Attorney General on the revenue side of the Court of Exchequer is or is not a criminal proceeding in any sense. In order to answer this question, we must consider Attorney General v. Radloff. It is not binding on this Court ; it is a case in the Court of Exchequer, and we are bound to exercise our own judgments upon it. It is a case in which the judges were equally divided in opinion, and, therefore, it could not bind any Court, but certainly could not bind this Court. Two of the judges were of opinion that unless there was something very peculiar in the Act of Parliament, such as that it in terms enacted that it was to be a criminal matter, the pro- ceeding on the revenue side of the Court of Exchequer for the recovery of a penalty in the name of the Attorney General was not a criminal proceeding. The other two were of opinion that it was. I will not go into the reasons, the reasons were given by eminent judges on both sides, but to my mind, if I had been a member of the Court at that time, I should have seen no answer to the reasoning of Martin, B., in that case, and I should have been of opinion in that case that an infor- mation for a penalty on the revenue side of the Court of Exchequer could not at any time, unless there were special and clear words in an Act of Parliament saying it was so, be considered as a criminal pro- ceeding. If that be true, then it is said th.it we are met by the 12 Select Cases on Criminal Law. [paet i. judgment of the House of Lords in Bradlaugh v. Clarke, and that the judgment of the House of Lords, particularly the judgment of Lord FitzGerald, seems to shew that in this Act of Parliament, even though we take the proceeding to be one which is the same as if it were brought on the revenue side of the Court of Exchequer, still it is a criminal matter. Now, that will partly depend on that judgment used as a binding authority, and partly on the argument which has been raised on the terms of this Act of Parliament itself. Reliance is placed on these words: "He shall for every such offence," and it is said that the use of the word " offence " shews that this is considered by the legislature as a crime. What is the offence ? The offence is not a refusal to take the oath, it is not a declining to take the oath. What " offence " means in the statute is a voting or sitting without having taken or subscribed the oath. It is possible — I do not think it very probable — that at the beginning of a Parliament a member may sit or vote who from forgetfulness or ignorance has not taken the oath. I mean a member who is in every sense capable of taking the oath, but who accidentally, from forgetfulness or ignorance, sits or votes without taking the oath, without having any intention to break the Act, and without having any intention to do anything forbidden by law. I have no doubt that he would be liable to the penalty, for no question of intent is introduced into this Act of Parliament. Now, to my mind, it is contrary to the whole established law of England (unless the legislation on the subject has clearly enacted it) to say that a person can be guilty of a crime in England without a wrongful intent — with- out an attempt to do that which the law has forbidden. I am aware that in a particular case, and under a particular criminal statute, fifteen judges to one held that a person whom the jury found to have no intent to do what was forbidden, and whom the jury found to have been deceived, and to have understood the facts to be such that he might with impunity have done a certain thing, was by the terms of that Act of Parliament guilty of a crime, and could be imprisoned. I say still, as I said then, that I cannot subscribe to the propriety of that decision. I bow to it, but I cannot subscribe to it : but the majority of the judges forming the Court so held because they said that the enactment was absolutely clears Here can anybody say that it is absolutely clear that this offence is to be considered as a crime ? If it is not absolutely clear, then the doctrine comes in that an act done without an evil intent must not be considered a crime, and that therefore the forbidden act in this statute, made liable to a penalty 1 It is presumed that the Master of the EoUs was alluding to Reg. v. Priifce, infra, p. 21. SECT. I.J The Attorney General v. Bradlcmgh. 13 whether done with or without an evil intent, is not to be a criminal act. Not very long after Att. Gen. v. Radloff had been heard in the Court of Exchequer, the legislature passed an Act of Parliament which certainly, to my mind, seems to have decided the controversy in favour of those judges who considered that a suit or information for penalties on the revenue side of the Court of Exchequer was not a criminal proceeding ; because the legislature applied to such trials rules which are applicable to a civil trial, and which are not applicable to a criminal trial. I am aware that out of delicacy to the judges, or for some other reason, the legislature did not put the statute into the form of a decla- ratory Act, but it seems to me a strong intimation of their opinion that the informations in the Exchequer were not criminal informations, when they applied to these informations the incidents of a civil trial. I agree with the opinion of Martin, B., in Att. Gen. v. Radloff, that when it is found that the Attorney General can either bring an infor- mation in the Exchequer or bi-ing an action of debt, it is inconsistent with the true view of the criminal law of England to say, that by proceeding in one form rather than in the other, he, under the same 'circumstances, can make in the one case that a crime which in the other can only be treated as a debt. Therefore I am myself clearly of opinion that the proceeding under this Act of Parliament by the Attorney General, although it is a proceeding which could be taken only by him and not by a private individual, is in the nature of a civil proceeding. . . . Judgment for the Crown. SECTION II. THE MENTAL ELEMENT IN CRIMINAL LIABILITY. [Mens rea is essential to crime.] THE COMMONWEALTH v. PRESBY. Supreme Court of Massachusetts. 1859. 14 Gray 65. Indictment for assault and battery. Hoar, J. The defendant, a pohce-officer, arrested one Harford for-being'intoxicated in a highway; and committed him to the watch- 14 Select Gases on Criminal Law. [part i. house. For this arrest, he was indicted. . . .Police officers are empowered by a Massachusetts statute to arrest without a warrant for the oflfence of intoxication in a public place. And at the trial, the presiding judge was asked to instruct the jury that " If Presby had reasonable cause to believe at the time of the arrest that Harford was intoxicated, then he was authorised in taking and retaining him." But it was argued, for the Commonwealth, that if Harford was not intoxicated, the statute would afford no justification for his arrest ; because the fact of intoxication, and not a suspicion or belief however reasonable, is requisite to such justification. This may be true in regard to the civil rights of the person whose liberty is invaded ; and in a civil action, the wrongdoer must usually justify his act, or be held re- sponsible But to constitute a criminal act there must, as a general rule, be a criminal intent. The general doctrine is stated in Hale's Pleas of the Crown that " where there is no will to commit an offence, there can be no transgression." And ignorance of fact, if unaccompanied by negligence, is one of the causes of exemption from criminal re- sponsibility. Hale gives (1 P. C. 42) the illustration of a sentinel firing at his commanding officer (who advances towards his post), under' the reasonable belief that he is an enemy Great caution should certainly be used in admitting the excuse of ignorance or mistake ; so as to exclude from its protection those who do not exercise all reasonable means to inform themselves before they commit an act which is apparently an invasion of private rights and a breach of the public peace But in the present case, the duty is made imperative upon the officer to make the arrest if he finds an intoxicated person in the street.... If the person whom he sees is really intoxicated, he must arrest him or suffer the consequences of official misconduct. Now the fact of intoxication, though usually easy to ascertain, is not in most cases a fact capable of demonstration with absolute certainty. Suppose a watchman to find a man in the gutter, stupefied and smelling very strongly of spirituous liquors. The man may have fallen in a fit; and some person may have tried to relieve him by the application of a stimulant, and then have left in search of assistance. Or, in another case, the person arrested may, for purposes of amusement or mischief have been simulating the appearance and conduct of drunkenness. Is the officer to be held a criminal, if, using his best judgment and discretion and all the means of information in his power, in a case where he is called upon to act, he makes a mistake of fact and comes to a wrong conclusion? It would be singular, indeed, if a man deficient in reason should be protected from criminal responsibility but another, who was obliged to decide upon the evidence before him SECT. ii.J The (Commonwealth v. Preshy. 15 and used in good faith all the reason and faculties which he had, should be held guilty. We therefore feel bound to decide that... if the defendant acted in good faith, upon reasonable and probable cause of belief, without rashness or negligence, he is not to be re- garded as a criminal because he is found to have been mistaken. [Mens rea is essential to crime.] THE QUEEN v. TOLSON. Crown Case Reserved. 1889. 23 Q.B.D. 168. Case stated by Stephen, J., and reserved by the Court for the con- sideration of all the judges. At the summer assizes at Carlisle in 1888 the prisoner Martha Ann Tolson was convicted of bigamy. It appeared that the marriage of the prisoner to Tolson took place on September 11, 1880; that Tolson deserted her on December 13, 1881 ; and that she and her father made inquiries about him and learned from his elder brother and from general report that he had been lost in a vessel bound for America, which went down with all hands on board. On January 10, 1887, the prisoner, supposing herself to be a widow, went through the ceremony of marriage with another man. The circumstances were all known to the second husband, and the ceremony was in no way concealed. In December, 1887, Tolson returned from America. Stephen, J., directed the jury that a belief in good faith and on reasonable grounds that the husband of the prisoner was dead would not be a defence to a charge of bigamy, and stated in the case that his object in so holding was to obtain the decision of the Court in view of the conflicting decisions of single judges on the point. The jury con- victed the prisoner ; stating, however, in answer to a question put by the judge, that they thought that she in good faith and on reasonable grounds believed her husband to be dead at the time of the second marriage. The judge sentenced her to one day's imprisonment. The question for the opinion of the Court was whether the direction was right Wills, J. The statute upon which the indictment was framed is the 24 and 25 Vict. c. 100, s. 57, which is in these words : " Whoever, 16 Select Cases on Criminal Law. [part i. being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony, punishable with penal servitude for not more than seven years, or imprisonment with or with- out hard labour for not more than two years," with a proviso that " nothing in this Act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by such person to be living wiihin that time. '' There is no doubt that under the circumstances the prisoner falls within the very words of the statute. She, being married, married another person during the life of her former husVjaud, and, when she did so, he had not been continually absent from her for the space of seven years last past. It is, however, undoubtedly 'a principle of English criminal law, that, ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent. "It is a principle of natural justice and of our law," says Lord Kenyon, C.J., "that actus non facit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime:" Fowler v. Paget^. The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong.' That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from posi- tive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may co-exist with respect to the same deed. There are many things prohibited by no statute — fornication or seduction, for instance — which nevertheless no one would hesitate to call wrong ; and the intention to do an act wrong in this sense at the least must as a general rule exist before the act done can be considered a crime. Knowingly and intentionally to break a statute must, I think, from the judicial point of view, always be morally wrong in the absence of special circumstances applicable to the particular instance and excusing the breach of the law, as, for instance, if a municipal regulation be broken to save life or to put out a fire. But to make it morally right some such special matter of excuse must exist inasmuch as the administration of justice and, indeed, the foundations of civil society rest upon the principle that obedience to the law whether it be a law approved of or disapproved of by the individual, is the first duty of a citizen. Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule and 1 7 T. E. 509, 514. SECT. II.] The Queen v. Tolson. 17 a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not. There is a large body of municipal law in the present day which is so conceived. Bye-laws are constantly made regulating the width of thoroughfares, the height of buildings, the thickness of walls, and a variety of other matters necessary for the general welfare, health, or convenience, and such bye- laws are enforced by the sanction of penalties, and the breach of them constitutes an offence and is a criminal matter. In such cases it would, generally speaking, be no answer to proceedings for infringe- ment of the bye-law that the person committing it had bona fide made an accidental miscalculation or an erroneous measurement. The Acts are properly construed as imposing the penalty when the act is done, no matter how innocently, and in such a case the substance of the enact- ment is that a man shall take care that the statutory direction is obeyed, and that if he fails to do so he does it at his peril. Whether an enactment is to be construed in this sense or with the qualification ordinarily imported into the construction of criminal statutes, that there must be a guilty mind, must, I think, depend upon the subject-matter of the enactment, and the various circumstances that may make the one construction or the other reasonable or un- reasonable. There is no difference for instance in the kind of language used by Acts of Parliament which made the unauthorized possession of Government stores a crime, and the language used in bye-laws which say that if a man builds a house or a wall so as to encroach upon a space protected by the bye-law from building he shall be liable to a penalty. Yet in Reg. v. Sleep ' it was held that a person in possession of Government stores with the broad arrow could not be convicted when there was not sufiicient evidence to shew that he knew they were so marked ; whilst the mere infringement of a building bye-law would entail liability to the penalty Now in the present instance one consequence of holding that the offence is complete if the husband or wife is de facto alive at the time of the second marriage, although the defendant had at the time of the second marriage every reason to believe the contrary, would be that though the evidence of death should be sufficient to induce the Court of Probate to grant probate of the will or administration of the goods of the man supposed to be dead, or to prevail with the jury upon an action by the heir to recover possession of his real property, the wife of the person supposed to be dead who had married six years and eleven months after the last time that she had known him to be alive would 1 L. & C. 44; 30 L.J. (M.C.) 170. 18 Select Gases on Criminal Law. [part i. be guilty of felony in case he should turn up twenty years afterwards. It would be scarcely less unreasonable to enact that those who had in the meantime distributed his personal estate should be guilty of larceny. It seems to me to be a case to which it would not be improper to apply the language of Lord Kenyon when dealing with a statute which literally intei-preted led to what he considered an equally preposterous result, "I would adopt any construction of the statute that the words will bear in order to avoid such monstrous con- sequences ^" Again, the nature and extent of the penalty attached to the offence may reasonably be considered. There is nothing that need shock any mind in the payment of a small pecuniary penalty by a person who has unwittingly done something detrimental to the public interest. To subject him, when what he has done has been nothing but what any well-disposed man would have been very likely to do under the circum- stances, to the forfeiture of all his goods and chattels, which would have been one consequence of a conviction at the date of the Act of 24 and 25 Vict., to the loss of civil rights, to imprisonment with hard labour, or even to penal servitude, is a very different matter ; and such a fate seems properly reserved for those who have transgressed morally as well as unintentionally done something prohibited by law.... Cave, J. At common law a reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim, " actus non facit reum, nisi mens sit rea." Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. Instances of the existence of this common law doctrine will readily occur to the mind. So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication. In Reg. v. Prince'^ in which the principle of mistake underwent much discussion, it was not suggested by any of the judges that the exception of honest and reasonable mistake was not applicable to all offences, whether existing at common law or created by statute. As I understand the judgments in that case the difference of opinion was as to the exact extent of the exception, Brett, J., the dissenting judge, holding that it applied where- ever the accused honestly and reasonably believed in the existence of circumstances which, if true, would have made his act not criminal 1 Fowler v. Padget, 7 T. E. 509, 514. " Law Eep. 2 C. C. E. 154. SECT. II.] The Queen v. Tolson. 19 while the majowty of the judges seem to have held that in order to make the defence available in that case the accused must have proved the existence in his mind of an honest and reasonable belief in the existence of circumstances which, if they had really existed, would have made his act not only not criminal but also not immoral. Whether the majority held that the general exception is limited to cases where there is an honest belief not only in facts which would make the act not criminal, but also in facts which would make it not immoral or whether tliey held that the general doctrine was correctly stated by Brett, J., and that the further limitation was to be inferred from the language of the particular statute they were then discussing, is not very clear. It is, however, immaterial in this case, as the jury have found that the accused honestly and reasonably believed in the existence of a state of circumstances, viz., in her first husband's death, which, had it really existed, would have rendered her act not only not criminal, but also not immoral. Stephen, J. ...The definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, tlie crime so defined is not committed ; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition. Crimes are in the present day much more accurately defined by statute or otherwise than they formerly were. The mental element of most crimes is marked by one of the words "maliciously," "fraudulently," "negligently," or "knowingly,'' but it is the general — I might, I think, say, the invariable — practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. The meanings of the words "malice," "negligence," and "fraud" in relation to particular crimes has been ascertained by numerous cases. Malice means one thing in relation to murder, another in relation to the Malicious Mischief Act, and a third, in relation to libel, and so of fraud and negligence. With regard to knowledge of fact, the law, perhaps, is not quite so clear, but it may, I think, be maintained that in every case knowledge of fact is to some extent an element of criminality as much as com- petent age and sanity. To take an extreme illustration, can anyone doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be 2—2 20 Select Gases on Criminal Law. [part i. entitled to be acquitted ? And why is this ? Simply because he would not know what he was doing.... The general principle is clearly in favour of the prisoners, but how does the intention of the legislature appear to have been against them ? It could not be the object of Parliament to treat the marriage of widows as an act to be if possible prevented as presumably immoral. The conduct of the women convicted was not in the smallest degree immoral, it was perfectly natural and legitimate. Assuming the facts to be as they supposed, the infliction of more than a nominal punish- ment on them would have been a scandal. Why, then, should the legislature be held to have wished to subject them to punishment at all? If such a punishment is legal, the following amongst many other cases might occur. A number of men in a mine are killed, and their bodies are disfigured and mutilated, by an explosion ; one of the sur- vivors secretly absconds, and it is supposed that one of the disfigured bodies is his. His wife sees his supposed remains buried ; she marries again. I cannot believe that it can have been the intention of the legislature to make such a woman a criminal ; the contracting of an invalid marriage is quite misfortune enough. It appears to me that every argument which shewed in the opinion of the judges in Reg. v. Prince^ that the legislature meant seducers and abductors to act at their peril, shews that the legislature did not mean to hamper what is not only intended, but .naturally and reasonably supposed by the parties, to be a valid and honourable marriage, with a liability to seven years' penal servitude. Conviction quashed^. [4 slight mens rea suffices.^ ANONYMOUS. King's Bench. 1498. Year Book 14 Hen. VII. f. 14. Hil. 5. HussEY [C. J.] said that a question was asked of him, which was this : — A clerk of a church, being in a room, struck another with the 1 Law Kep. 2 C. C. E. 154. 2 Nine of the judges held the conviction to have been wrong; five held it to have been right. SECT. II. J Anonymous. 21 keys o£ the church. And by the force of the blow the keys slipped from his hand, and went through a window and struck out a woman's eye. Should this be called mayhem or no? — that was the question. And to him it seemed that it should ; for at the beginning this man had a bad intent. But there should be much consideration in the assessment of. the damages. [Mens rea may exist without any intention to do the criminal act which was done.] REG. V. PRINCE. Ckown Case Reserved. 1875. L.R. 2 C.C.R. 154. Case stated by Denman, J. At the assizes for Surrey, held at Kingston-upon-Thames, on the 24th of March last, Henry Prince was tried upon the charge of having unlawfully taken one Annie Phillips, an unmarried girl, being under the age of sixteen years, out of the possession and against the will ■of her father. The indictment was framed under s. 55 of 24 and 25 Vict. 0. 100 '. He was found guilty. All the facts necessary to support a conviction existed, unless the following facts constituted a defence. The girl Annie Phillips, though proved by her father to be fourteen years old on the 6th of April following, looked very much older than sixteen, and the jury found upon reasonable evidence that before the defendant took her away she had told him that she was eighteen, and that the defendant bona fide believed that statement, and that such belief was reasonable. May 29. The case was argued before Cockburn, C.J., Kelly, C.B., Bramwell, Cleasby, Pollock, and Aniphlett, BB., Blackburn, Mellor, Lush, Brett, Grove, Quain, Denman, Archibald, Field, and Lindley, JJ. Brett, J. ...Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or "mens rea." ' By 24 and 25 Vict. c. 100, o. 55, "Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour." 22 Select Cases on Griminal Law. [part i. Then comes the question, what is the true meaning of the phrase ? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end by bringing the offence within a more serious class of crime. As if a man strikes with a dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk. So, if a prisoner do the prohibited acts, "without caring to consider what the trutli is as to facts — as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen — he runs the risk. So if he without abduction defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve. If the facts were as he believed he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ignorance of the law does not excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe, and does believe to be the facts, would, if true, make his acts no criminal ofience at all. Bramwell, B. The question in this case depends on the con- struction of the statute under which the prisoner is indicted. That enacts that "whosoever shall unlawfully take any unmarried girl under the age of sixteen out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour." Now the word "unlawfull}'" means "not lawfully,'' "otherwise than lawfully,'' "without lawful cause," such as would exist, for instance, on a taking by a police officer on a charge of felony, or a taking by a father of his child from his school. The statute, therefore, may be read thus : "Whosoever shall take, &c., without lawful cause." Now the prisoner had no such cause, and consequently, except in so far as it helps the construction of the statute, the word "unlawfully" may in the present case be left out, and then the question is, has the prisoner taken an unmarried girl under the age of sixteen out of the possession of and against the will of her father ? In fact, he has ; but it is not said within the meaning of the statute, and that that must be read as thouo-h the word "knowingly," or some equivalent word, was in; and the reason given is, that as a rule the mens rea is necessary to make any act a crime or offence, and that if the facts necessary to constitute an offence are not known to the alleged offender, there can be no mens rea I have used the word "knowingly"; but it will, perhaps, be said that here the prisoner not only did not do the act knowingly, but knew SECT. II.] Reg. V. Prince. 23 as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself, "I do not know how the fact is, whether she is under sixteen or not, and will take the chance," but acted on the reasonable belief that she was over sixteen ; and that though if he had done what he did, knowing or believing neither way, but hazarding it, there would be a mens rea, there is not one when, as he believes, he knows that she is over sixteen. It is impossible to suppose that, to bring the case within the statute, a person taking a girl out of her father's possession against his will is guilty of no offence unless he, the taker, knows she is under sixteen ; that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be, then, that the question is, whether he is guilty wliere he knows, as he thinks, that she is over sixteen 1 This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl, being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," &c. Those words are not there, and the question is, whether we are bound to construe the statute as though they were, on account of the rule that the mens rea is necessary to make an act a crime. I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons : The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female with a good motive. Nevertheless, though there may be such cases, which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is the case supposed by the statute. It supposes that there is a girl— it does not say a woman, but a girl- something between a child and a woman ; it supposes she is in the posgession of her father and mother, or other person having lawful ca/re or charge of her; and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is, then, a takirvg of a girl, in the fossession of some one, against his mil. I say that done without lawful cause is wrong, and -that the legislature meant it should be at the risk of the taker whether or no she was under sixteen. I do not say that taking a woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself; she is not a girl, nor of such tender age that she can be said to be in the possession of or under 24 Select Oases on Criminal Law. [part i. the care or charge of anyone. I am asked where I draw the line; I answer at when the female is no longer a girl in anyone's possession. But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act, he does it at the risk of her turning out to be under sixteen. This opinion gives full scope to the doctrine of the mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea; so if he did not know she was in anyone's pos- session, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute — an act which, if he knew she was in possession and in care or charge of anyone, he would know was a crime or not, according as she was under sixteen or not. He would not know he was doing an act wrong in itself, what- ever was his intention, if done without lawful cause. In addition to these considerations, one may add that the statute does use the word "unlawfully,'' and does not use the word "know- ingly" or "not believing to the contrary." If the question was whether his act was unlawful, there would be no difficulty, as it clearly was not lawful. This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Sect. 50 makes it a felony to unlawfully and carnally know a girl under the age of ten. Sect. 51 enacts when she is above ten and under twelve to unlawfully and carnally know her is a misdemeanour. Can it be supposed that in the former ease a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a mis- demeanour ; or that he believed her over twelve, and so had committed no offence at all; or that in a case under s. 51 he could claim to be acquitted, because he believed her over twelve ? In both cases the act is intrinsically wrong; for the statute says if "unlawfully" done. The act done with a mens rea is unlawfully and carnally knowing the girl, and the man doing the act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So s. 56, by which whoever shall take away any child under fourteen with intent to deprive parent or guardian of the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say, "I did take away the child to steal its clothes, but I believed it to be over fourteen"? If not, then SECT. ii.J Reg. V. Prince. 25 neither could he say, "I did take the child with intent to deprive the parent of its possession, but I believed it over fourteen.'' Because if words to that effect cannot be introduced into the statute where the intent is to steal the clothes, neither can they where the intent is to take the child out of the possession of the parent. But if those words cannot be introduced in s. 56, why can they be in s. 55? The same principle applies in other cases. A man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer^ Why? because the act was wrong in itself. So, also, in the case of burglary, could a person charged claim an acquittal on the ground that he believed it was past six when he entered, or in housebreaking, that he did not know the place broken into was a house? Take, also, the case of libel, pubUshed when the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong; he could not be entitled to be acquitted because there was no mens rea. Why? because the act of publishing written defamation is wrong where there is no lawful cause. As to the case of the marine stores, it was held properly that there was no mens rea where the person charged with the possession of naval stores with the Admiralty mark did not know the stores he had bore the mark: Reg. v. Sleep'; because there is nothing prima facie wrong or immoral in having naval stores unless they are so marked. But suppose his servant had told him that there was a mark, and he had said he would chance whether or not it was the Admiralty mark? So in the case of the carrier with game in his possession ; unless he knew he had it, there would be nothing done or permitted by him, no intentional act or omission. So of the vitriol senders; there was nothing wrong in sending such packages as were sent unless they contained vitriol. Further, there have been four decisions on this statute in favour of the construction I contend for. I say it is a question of construction of this particular statute in doubt, bringing thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty; and equally impossible when he believes, but erroneously, that she is old enough for him to do a wrong act with safety. I think the conviction should be affirmed. Denman, J. ...In the present case the jury find the defendant believed the girl to be eighteen years of age; even if she had been of 1 10 Cox, Cr. C. 362. ^ 8 Cox, Cr. C. 472. 26 Select Cases on CrimiriMl Law. [pabt i. that age, she would have been in the lawful care and charge of her father, as her guardian by nature: see Co. Litt. 88, b, n. 12, 19th ed., recognized in Reg. v. Howes^. Her father had a right to her personal custody up to the age of twenty-one, and to appoint a guardian by deed or will, whose right to her personal custody would have extended up to the same age. The belief that she was eighteen would be no justi- fication to the defendant for taking her out of his possession, and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act, viz. in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that the girl was eighteen, and therefore unable to allege that what he has done was not unlawfully done, within the meaning of the clause. In other words, having knowingly done a wrongful act, viz. in taking the girl away from the lawful possession of her father against his will, and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the legislature: he had wrongfully and knowingly violated the father's rights against the father's will. And he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing. Conviction affirmed ^- [^Mistahe of fact.^ REX V. LEVETT. Newgate Sessions. 1638. Ceo. Car. 538 Jones, J., said that there was resolved by the Chief Justice and himself and the Recorder of London, at the last Sessions at Newgate the case of one William Levett, who was indicted of the homicide of a woman called Frances Freeman. There it was found by special 1 3 B. and E. 332. 2 All the sixteen judges, except Brett, J., concurred, though not for identical reasons, in affirming the conviction. SECT. II.] Rex V. Levett. 27 verdict, That the said Levett and his wife being in the night in bed and asleep, one Martha Stapleton, their servant, having procured the said Frances Freeman to lielp her about the house-business, about twelve of the clock at night going to the doors to let out the said Frances Freeman, conceived she heard thieves at the doors offering to break them open. Whereupon she, in fear, ran to her master and mistress, and informed them that she was in doubt that thieves were breaking open the house door. Upon that he arose suddenly and fetched a drawn rapier. And the said Martha Stapleton, lest her master and mistress should see the said Frances Freeman, hid her in the buttery. And the said Levett and Helen his wife, coming down, he with his sword searched the entry for the thieves. And she the said Helen, espying in the buttery the said Frances Freeman, whom she knew not, conceiving she had been a thief, crying to her husband in great fear, said unto him, " Here they be that would undo us." Thereupon the said William Levett, not knowing the said Frances to be there in the buttery, hastily entered therein with his drawn rapier, and being in the dark and thrusting with his rapier before him, thrust the said Frances under the left breast, giving unto her a mortal wound, whereof she instantly died : and whether it were manslaughter, they prayed the discretion of the Court. And it was resolved that it was not ; for he did it ignorantly, without intention of hurt to the said Frances. [Mens rea may he excluded hy Ignorance of Fact^ ANONYMOUS. Assizes. 1745-63. Foster's Crown Law 265. I once upon the circuit tried a man for the death of his wife by the like accident. Upon a Sunday morning the man and his wife went a mile or two from home with some neighbours to take a dinner at the house of their common friend. He carried his gun with him, hoping to meet with some diversion by the way; but before he went to dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in the evening returned home with his wife and neighbours, bringing his gun with him, which was carried into the room where his wife was, she having brought it part of 28 Select Cases on Criminal Law. [pakt i. the way. He taking it up touched the trigger, and the gun went off and killed his wife, whom he dearly loved. It came out in evidence, that, while the man was at church, a person belonging to the family privately took the gun, charged it and went after some game; but before the service at church was ended returned it loaded to the place whence he took it, and where the defendant, who was ignorant of all that had passed, found it, to all appearance as he left it. I did not inquire, whether the poor man had examined the gun before he carried it home; but being of opinion upon the whole evidence, that he had reasonable grounds to believe that it was not loaded, I directed the jury, that if they were of the same opinion they should acquit him. And he was acquitted. \^But Ignorance of Fact does not excuse if it he careless and unreasonable.^ REG. V. JOHN JONES. Shrewsbury Assizes. 1874. 12 Cox 628. Prisoner was indicted before Mr Justice Lush for the manslaughter of Benjamin Jones. The mother of the deceased said that he was eight years old ; that she went upstairs leaving the prisoner downstairs and after a short time she heard the explosion of a gun. On coming down she saw that the boy's brains had been blown out. She said, " O Jack, you have shot the child." The prisoner did not speak. On a police constable arriving she repeated the expression, and the prisoner said, "He shot himself." The prisoner was always very kind to the boy. Another witness said that on the morning in question he (the witness) loaded the gun and went out with it, but did not discharge it, and on his return took off the cap and put it in a, cap box in the cupboard in the house. He put the gun in a corner of the room. Being cross-examined, he said that he could not swear that he took the cap off. A police constable stated that the prisoner, when charged in his presence with shooting the boy, said, "Do you think I have no more sense? he did it himself"; but on the road to the police station said, "The boy was playing with it and I told him to put it down, and he did so, and SECT. II.] Reg. V. John Jones. 29 I picked it up and pointed it at him ; he ran into the pantry, and I waited till he came out, then it went off." It was contended for the defence that the gun went off by accident as the prisoner was about to replace it in the corner. Lush, J., to the jury. No doubt the prisoner did not intend to discharge the gun at the child. What he did was either an accident or was negligence on his part. The charge is that he so carelessly handled the gun as to occasion the death of the deceased. If a person points a gun without examining whether it is loaded or not, and it happens to be loaded and death results, he is guilty of negligence and manslaughter. Can you come to any other conclusion than that the prisoner did efther in joke or otherwise point the gun at the boy? [His Lordship read the evidence.] If he held the gun pointed at the boy, and so held it until the child came out of the pantry, and it went off, what can that be but so improperly and carelessly handling the gun as to be negligence, and therefore manslaughter 1 Verdict : Guilty with a recommendation to mercy. Sentence : Two months' imprisonment. [N.B. If a man finds a pistol, tries it with the rammer, and thinks it unloaded, carries it home, shews it to his wife, touches the trigger, it goes off and kills her, ruled manslaughter; yet ought to have been only accidental death. Per Holt, C. J., and Foster, J. (Foster's Cr. Law, 263; Com. Dig. Tit. Justices, M. 18).] [See also The State v. Hardie, infra.] [Mens rea is not excluded hy Ignorance of Law.] REX V. BAILEY. Admiralty Sessions. 1799. Russell and Ryan 1. The prisoner was tried before Lord Eldon, at the Admiralty Sessions, December 1799, on an indictment for wilfully and maliciously shooting at Henry Truscott. It appeared in evidence, that on the 27th of June, 1799, the prisoner was the captain of a vessel called the Langley, a letter of marque : that about 130 leagues from Falmouth, on that day, he discovered in the morning, and fell in with another vessel called the Admiral Nelson, sailing at that time without colours hoisted, on board of which vessel 30 Select Cases on Criminal Law. [part i. Henry Truscott, the person charged in the indictment to have been shot at, was a mariner. This vessel was certainly so conducting herself, at that time, as to give the prisoner, the captain of the letter of marque, reasonable ground to think that she was an enemy. Three guns were fired at the Admiral Nelson, one of which, loaded with grape-shot, wounded Henry Truscott severely in the arm It was insisted that the prisoner could not be found guilty of the oflTence with which he was charged, because the Act of the 39 Geo. III. c. 37, upon which (together with the statute relating to maliciously shooting — 9 Geo. I. c. 22) the prisoner was indicted at this Admiralty Sessions, and which Act of the 39 Geo. III. is entitle(J, " An Act for amending certain defects in the law respecting offences committed on the high seas," only received the royal assent on the 10th of May, 1799, and the fact charged in the indictment happened on the 27th of June, in the same year, when the prisoner could not know that any such Act existed (his ship, the Langley, being at that time upon the coast of Africa). LoKD Eldon told the jury that he was of opinion that he was, in strict law, guilty within the statutes, taken together, if the facts laid were proved, though he could not then know that the Act of the 39 Geo. III. c. 37 had passed ; and that his ignorance of that fact could in no otherwise affect the case, than that it might be the means of recommending him to a merciful consideration elsewhere should he be found guilty. All the Judges (except Mr Justice Buller) met at Lord Kenyon's chambers, and were of opinion that it would be proper to apply for a pardon, on the ground that the fact having been committed so short a time after the Act 39 Geo. III. c. 37 was passed, the prisoner could not have known of it. SECT. II.] Reynolds v. The United States. 31 [Mens rea is not excluded, hy the prisoner's belief in a religious obligation to commit the crime.^ REYNOLDS v. THE UNITED STATES. SuPEBME Court of the United States. 1878. 8 Otto 145. In the District Court of the Territory of Utah, an indictment for bigamy had been found against George Reynolds, a Mormon ; who had been convicted and sentenced thereon. At the trial the prisoner requested the Court to direct the jury that their verdict ought to be " Not Guilty " if they found that he had married in pursuance of a belief that polygamy was a religious duty. The Court declined to do so ; and, in summing up, directed the jury that if the prisoner deliberately married a second time, having a first wife living, though under the influence of a religious belief that polygamy was right, this want of consciousness of evil intent would not excuse him.... On this, and other grounds he sued out a writ of error to the Supreme Court. Waite, C. J. ...As to the defence of religious belief. The accused proved that at the time of his alleged second marriage, he was a member of the Mormon Church and a believer in its doctrines. It is its accepted doctrine that it is the duty of its male members, circumstances permitting, to practise poly gamy... and that a refusal to do so would be punished. ..in the life to come The question is raised whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land A criminal intent is a necessary element of crime. But here every act necessary to constitute the crime was done knowingly. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent ; but not ignorance of the law. And here the only defence of the accused is his belief that the law ought not to have been enacted. In lieg. v. Wagstaffe (10 Cox 531) the parents of a sick child who omitted to call in medical attendance because of their religious belief that what they did for its cure would be effective, were held not to be guilty of manslaughter ; but it was said the con- trary would have been the result if the child had been starved to death by them, under a notion that it was their religious duty to abstain from giving it food. In that case Willes, J., said, " There is a great difference between neglecting a child in respect to food (with regard to which, there can be but one opinion), and neglect of medical treatment, as to which there may be many opinions." When the offence consists of a definite positive act, which is done knowingly, it would be dangerous to hold that the offender might escape punishment because 32 Select Cases on Criminal Law. [pabt i. he religiously believed the law which he had broken ought never to have been made. No case can be found, we believe, that has gone so far Judgment affirmed. [Editor's Note. The Prevention of Cruelty to Children Act (57 and 58 Vict. c. 41, s. 1) makes it a statutory offence for a parent wilfully so to neglect a child as to cause unnecessary injury to its health. Accordingly, in such a case as that of Reg. v. Wagstaffe, the parent might now be convicted of manslaughter ; see a more recent prosecution of one of the " Peculiar People," Reg. v. Senior (L. R. [1899] 1 Q. B. 283). In this case, some of the judges appear to have been prepared to hold, moreover, that the neglect would amount to manslaughter even at common law ; and thus to overrule Reg. v. Wagstaffe.l [In some exceptional crimes, less than the usual m,ens rea suffices.^ SHERRAS V. DE EUTZEN. Queen's Bench Division. 1895. L.R. 1 Q.B.D. 918. Case stated by the chairman of quarter sessions for the county of London. The appellant was the licensee of a public-house, and was con- victed before a metropolitan police magistrate under s. 16, sub-s. 2, of the Licensing Act, 1872 ', for having unlawfully supplied liquor to a police constable on duty without the authority of a superior officer of such constable for so doing. It appeared that the appellant's public-house was situated nearly opposite a police-station, and was much frequented by the police 1 By the Licensing Act, 1872 (35 and 36 Vict. e. 94), s. 16, " If any licensed person " (1) Knowingly harbours or knowingly suffers to remain on his premises any constable during any part of tbe time appointed for sach constable being on duty ...or " (2) Supplies any liquor or refreshment whether by way of gift or sale to any constable on duty unless by authority of some superior officer of such constable, or "(3) Bribes or attempts to bribe any constable,... he shall be Uable to a penalty..." SECT. II.] Sherras v. Be Rutzen. 33 when off duty, and that on July 16, 1894, at about 4.40, the police constable in question, being then on duty, entered the appellant's house and was served with liquor by the appellant's daughter in his presence. Prior to entering the house the police constable had removed his armlet, and it was admitted that if a police constable is not wearing his armlet that is an indication that he is off duty. The armlet is removed at the police-station when a constable is dismissed, and a publican seeing the armlet off would naturally think the police constable off duty. The police constable was in the habit of using the appellant's house, and was well known as a customer to the appellant and his daughter. Neither the appellant nor his daughter made any inquiry of the police constable as to whether he was or was not on duty, but they took it for granted that he was off duty in con- sequence of his armlet being off, and served him with liquor under that belief. The appellant and his daughter were in the habit of serving a number of police constables in uniform with their armlets off each day, and the question whether they were or were not on duty was never asked when the armlet was seen to be off. The appellant appealed to quarter sessions against the conviction, contending tliat in order to constitute an offence under s. 16, sub.-s. 2, of the Licensing Act, 1872, there must be shewn to be either know- ledge that the police constable was on duty, or an intentional abstention from ascertaining wliether he was on duty or not. The Court of quarter sessions, however, upheld the conviction, considering that knowledge that the police constable, when served with liquor, was on duty, was not an essential ingredient of the offence: but stated this case for the opinion of the Court. Day, J. I am clearly of opinion that this conviction ought to be quashed. This police constable comes into the appellant's house without his armlet, and with every appearance of being off duty. The house was in the immediate neighbourhood of the police-station, and the appellant believed, and he had very natural grounds for believing, that the constable was off duty. In that belief he accordingly served him with liquor. As a matter of fact, the constable was on duty ; but does that fact make the innocent act of the appellant an offence? I do not think it does. He had no intention to do a wrongful act; he acted in the bona fide belief that the constable was off duty. It seems to me that the contention that he committed an offence is utterly erroneous. An argument has been based on the appearance of the word "knowingly" in sub.-s. 1 of s. 16, and its omission in sub-s. 2. In my opinion the only effect of this is to shift the burden of proof. In cases under sub-s. 1 it is for the prosecution to prove the know- 3 34 Select Cases on Criminal Law. [part i. ledge, while in cases under sub-s. 2 the defendant has to prove that he did not know. That is the only inference I draw from the insertion of the word "knowingly" in the one sub-section and its omission in the other. It appears to me that it would be straining the law to say that this publican, acting as he did in the bona fide belief that the constable was off duty, and having reasonable grounds for that belief, was never- theless guilty of an offence against the section, for which he was liable both to a penalty and to have his licence indorsed. Weight, J. I am of the same opinion. There are many cases on the subject, and it is not very easy to reconcile them. There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence ; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered: Nichols v. HaW. One of the most remarkable exceptions was in the case of bigamy. It was held by all the judges, on the statute 1 Jac. I., c. 11, that a man was rightly convicted of bigamy who had married after an invalid Scotch divorce, which had been obtained in good faith, and the validity of which he had no reason to doubt: Lolle-i/s Case' Another exception, apparently grounded on the language of a statute, is Prince's Case^, where it was held by fifteen judges against one that a man was guilty of abduction of a girl under sixteen, although he believed, in good faith and on reasonable grounds, that she was over that age. Apart from isolated and extreme cases of this kind, the principal classes of exceptions may perhaps be reduced to three. One is a class of acts which, in the language of Lush, J., in Davies v. Harvey*, are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty. Several such instances are to be found in the decisions on the Revenue Statutes, e.g., Attorney General v. Lochivood^, where the innocent possession of liquorice by a beer retailer was held an offence. So under the Adulteration Acts, Reg. v. Woodrow^, as to innocent possession of adulterated tobacco ; Fitzpatrick \. Kelly'' atxA lioberts v. Egerton^, as to the sale of adulterated food. So under the Game Acts, as to the innocent possession of game by a carrier : Rex v. Marsh^. So as to the liability of a guardian of the poor, whose partner,. 1 Law Eep. 8 C. P. 322. ' E. & R. 237. 3 Law Eep. 2 G. 0. 154. ^ Law Eep. 9 Q. B. 433. 5 9 M. & W. 378. 6 15 M. & W. 404. ' Law Eep. 8 Q. B. 337. » Law Eep. 9 Q. B. 494. 9 2 B. & C. 717. SECT. II.] Sherras v. De Rutzen. 35 unknown to him, supplied goods for the poor : Davies v. Harvey^. To the same head may be referred Reg. v. Bishop '', where a person was held rightly convicted of receiving lunatics in an unlicensed house, although the jury found that he honestly and on reasonable grounds believed that they were not lunatics. Another class comprehends some, and perhaps all, public nuisances: Reg. v. Stevens^, where the employer was held liable on indictment for a nuisance caused by workmen without his knowledge and contrary to his orders ; and so in Rex v. Medley''; and Barnes v. Akroyd^. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right : see per Williams and Willes, JJ., in Morden v. Porter^, as to unintentional trespass in pursuit of game ; Lee v. Simpson ', as to unconscious dramatic piracy ; and Har greaves v. Diddams', as to a bona fide belief in a legally impossible right to fish. But, except in such cases as these, there must in general be guilty knowledge on the part of the defendant, or of some one whom he has put in his place to act for him generally, or in the particular matter, in order to constitute an offence. It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save him from a conviction under s. 16, sub-s. 2, since it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer, as to remove his armlet before entering the public-house. I am, there- fore, of opinion that this conviction ought to be quashed. Conviction quashed. See also Coppen v. Moore, infra. [If a master has no mens rea, he is not liable criminally Jor his servant's unauthorised act, even when liable for it civilly.^ REX V. HUGGINS. King's Bench. 1730. 2 Lord Raymond 1574. This was a special verdict found at the Old Bailey on an indictment of murder against James Barnes and John Huggins, and removed into the King's Bench by certiorari. I Law Bep. 9 Q. B. 433. 2 5 Q. B. D. 259. ^ Law Bep. 1 Q. B. 702. * 6 C. & P. 292. ^ Law Bep. 7 Q. B. 474. « 7 C. B. (N.S.) 641; 29 L. J. (M.C.) 213. 7 3 c. B. 871. 8 Law Bep. 10 Q. B. 582. 3—2 36 Select Cases on Criminal Law. [part i. Raymond, C. J., delivered the opinion of the Judges. As to Huggins, the jury have only found these facts, viz. : That he had the office of Warden of the Fleet Prison granted to him by letters patent, to hold for his life, and to execute by himself or his deputy ; that he on 1 September, 12 Geo. I. and before, and from thence to 1 January, 12 Geo. I., was Warden of the Fleet; that Thomas Gibbons was, and for all that time acted as, his deputy in that office; that James Barnes was for all that time servant of Gibbons, and acted under him about tlie care of the prisoners, and particularly about the care of Arne. Then they find that Barnes assaulted, and carried by force the said Arne into a room, and kept him there against his con- sent, as in the indictment, forty-four days. Then they find the situation and condition of the room, whereby it was vei-y unwholesome, and dangerous to the life of any person kept therein ; that Huggins, during the imprisonment of Arne in that room, viz. for fifteen days before Arne's death, knew that the room was then lately built, and that the walls were made of brick and mortar, and were then damp. But whether he knew it on the 7th of September they are ignorant. Arne on the 10th of September, 12 Geo. I., by duress of imprisonment became sick, and languished to the 20th of October, and then died by duress of imprisonment in the said room. During the imprisonment of Arne in that room, viz. for at least fifteen days before his death, Huggins was once present at that room, and then saw the said Arne in that room sub duritie imprisonamenti praedicti, ac adtunc et ibidem se avertit, and the said James Barnes, the same time as Huggins turned himself away, locked the door, the said Arne at the time when the said door was locked by Barnes being in the said room sub duritie im- prisonamenti praedicti. And that Arne remained under that duress till his death : that Huggins acted sometimes as warden, during the time Gibbons was deputy ; but it is not found that he acted as warden during the confinement of Arne. The Judges are unanimously of opinion, that the facts found in this special verdict do not amount to murder in the prisoner at the bar. Though he was warden, yet it being found that there was a deputy, he is not, as warden, guilty of the facts committed under the authority of his deputy. He shall answer as superior for his deputy civilly, but not criminally. It has been settled, that though a sheriff must answer for the offences of his gaoler civilly (that is, he is subject, in an action, to make satisfaction to the party injured), yet he is not to answer criminally for the offences of his under-officer. He only is criminally punishable who immediately does the act or permits it to be done. (Hale, P. C. 114.) So that if an act be done by an under-officer, unless SECT. ii.J Rex V. Huggins. 37 it is done by the command or direction, or with the consent of the principal, the principal is not criminally punishable for it. In this case the fact was done by Barnes ; and it nowhere appears in the special verdict that the prisoner at the bar ever commanded, or directed, or consented to this duress of imprisonment, which was the cause of Arne's death. No command or direction is found ; and it is not found that Huggins knew of it. That which made the duress in this case was (1) Barnes carrying, and putting, and confining Arne in this room by force and against his consent ; (2) the situation and condition of the room. Now it is not found that Huggins knew these several circum- stances which made the duress. It is not found that he knew anything of Barnes carrying Arne thither ; nor that he was there without his consent or without proper support. As to the room it is found by the verdict: — (1) That the room was built of brick and mortar; (2) that the walls were valde humidae ; (3) that the rnom was situate on the common sewer of the prison, and near the place where the filth of the prison and excrement of the prisoners were usually laid. Ratione quorum the room was very unwholesome, and the life of any man kept there was in great danger. But all that is found with respect to the prisoner's knowledge is, that for fifteen days before Arne's death he knew that the room was "then lately built, that the walls were made of brick and mortar, and were then damp. But it is not found, nor does it appear, that he knew they were dangerous to a man's life or that there was a want of necessary support. Nor is it found that he directed or consented that Arne should be kept or con- tinued there. The chief thing relied upon is, that the verdict finds that once the prisoner at the bar was present at the room, and saw Arne suh duritie imprisonamenti praedicti, et se avertit ; which, as was objected, made him an aider and abettor. But, in answer to this : (1) Being present alone, unless he knew all the circumstances, and directed that Arne should continue, or at least consented that he should, cannot make him an aider or abettor in the murder. Kelynge 113. A man maybe present and be entirely innocent; he may be present casually. (2) The verdict is vidit sub duritie imprisonamenti praedicti. He might see him, and see him while he was suh duritie imprisonamenti praedicti, that is while he was in fact under the duress by Barnes ; but it does by no means follow from thence that he knew that the man was under this duress, and it is not found that he did know it. It was objected, that if he saw the man under this duress he must know it ; and it was his duty to deliver him. But we cannot take things by inference in this manner. The vidit does not imply a knowledge of the several facts that made the duress. If the nature 38 Select Cases on Criminal Law. [part i. of this duress be considered, it is impossible that it should be discovered by one sight of the man. It consists of several ingredients and circum- stances, that are not necessarily to be discovered upon sight. For though he saw Arne in the room, yet by the view he could not tell that he was there without his consent, and by force, or that he wanted necessary relief. It is not found that the man made any complaint to him, or that any application was made to him on the man's behalf. If he was there with his consent it would take ©ff the duress. His seeing is but evidence of his knowledge of these things at best, and very poor evidence too. And therefore the jury, if the fact would have borne it, should have found, that Huggins knew that Arne was there without his consent, and that he consented to and directed his continuance there ; which not being done, we cannot intend these things nor infer them. [But a servant's acts in the ordinary course of his master's business are priTnd facie presumed to he authorized hy the master^ REX V. ALMON. King's Bench. 1770. 5 Burrow 2686. The defendant having been convicted of publishing a libel (Junius's Letter to the King), in one of the magazines called The London Museum, which was bought at his shop, and even professed to be printed for him, his counsel moved, on Tuesday, 19th June, 1770, for a new trial, upon the foot of the evidence being insuflBcient to prove any criminal intention in Mr Almon, or even the least knowledge of their being sold at his shop. And they had affidavits to prove, that it was a frequent practice in the trade, for one publisher to put another publisher's name to a pamphlet, as printed for that other when, in fact, it was published for himself. That this was the fact in the present case ; Mr Miller being the real publisher of this Museum but having advertised it and published it as printed for Mr Almon without consulting Mr Almon, or having his consent or approbation. That, on the contrary, as soon as he saw his name put to it as being printed for him, he immediately sent a note to Mr Miller expressing his disapprobation and dissatisfaction. That he himself had no concern whatever in this London Museum. That he was not at home when SECT. II.] Rex V. Almon. 39 they were sent to his shop. That the whole number sent to his shop was 300. That about 67 of them had been sold there by a boy in the shop, but without Mr Almon's own knowledge, privity, or approbation. That as soon as he discovered it he stopped the sale, ordered the remainder to be carried up into his garret, and took the first opportunity to return them to Mr Miller. That it was not proved, that the person who sold them was Mr Almon's servant or employed by him, or that Mr Almon was at all privy to the sale.... LoED Mansfield said that... buying the pamphlet in the shop of a professed bookseller and publisher of pamphlets, from a person acting in the shop, is primi facie evidence of a publication by the master himself. But that it is liable to be contradicted, where the fact will bear it, by contrary evidence tending to exculpate the master, and to show that he was not privy nor assenting to it nor encouraging it. That this being prima facie evidence of a publication by the master himself, it stands good till answered by him ; and if not answered at all, it thereby becomes conclusive so far as to be suflBcient to convict him. That proof of a public exposing to sale, and selling at his shop by his servant, was prima facie sufficient; and must stand till contra- dicted or explained or exculpated by some other evidence ; and if not contradicted, explained, or exculpated, would be in point of evidence sufficient or tantamount to conclusive. Aston, J. ...The bookseller has the profits of the shop, and is answerable for the consequences. ...If he had a sufficient excuse, he might have proved it The Court therefore unanimously discharged the rule. [If a servant has no mens rea, he is not liable criminally for a criminal act which he does in obedience to his master, even lohen liable for it civilly.^ REGINA •;;. JAMES. Oxford Circuit. 1837. 8 Caeeington & Payne 131. Indictment on the statute 7 & 8 Geo. IV., c. 30, s. 6 for obstructing the airway of a mine It was opened by Ludlow, Serjt. for the prosecution that a Mr Phelps's colliery... was adjacent to a colliery of Mr Protheroe's. 40 Select Cases on Criminal Law. [part i. The two collieries, though adjacent, were not connected with each other ; and belonging to Mr Phelps's mine, which ran more than a mile under ground, was an airway. In the coal mines there was a gas or vapour called the choke-damp, which was fatal to animal life, and to guard against the effects of this various contrivances had been resorted to. In the mine of Mr Phelps a long airway was constructed with a large fire near the end of it, and beyond that a pit called an air-pit ; the effect of the fire being to create a strong draught of air, and thus draw off the choke-damp out of the mine ; there being also side doors to close all the openings which led into other workings in the mines. Things were in this state till the 26th of May last, when the prisoners, headed by the prisoner James, who was a principal person in Mr Protheroe's colliery, proceeded to the place and pulled down the side doors and fire-grate, and also took down the side doors and built a wall across the airway. The effect of this would be to drive back the choke-damp into Mr Phelps's mine, and prevent the working. Lord Abinger, C.B. If a servant did this by his master's order, and supposing bona fide that the master had a right to order it to be done, would it not be too much to say that the servant is answerable as a felon for doing the thing maliciously, when the malice, if there is any, is his master's and not his own 1 Ludlow, Serji. Suppose that a master ordered his servant to shoot a man, that would be no excuse for the servant if he did it. Lord Abinger, C.B. That is an act which is malum in se. But if a master, having a doubt or no doubt of his own rights, sets his servants to build a wall in a mine, they would, if he proved to have no right, be all liable in an action of trespass, but it would not be felony in the servants. The rules respecting acts mala in se do not apply. If a master told his servant to shoot a man, he would know that that was an order he ought to disobey. But if the servant bonS, fide did these acts, I think they do not amount to an offence within this statute. If a man claims a right which he knows not to exist, and he tells his servants to exercise it, and they do so, acting bona fide, I am of opinion that that is not a felony in them, even if in so doing thej' obstruct the airway of a mine. What I feel is this, that if these men acted bona fide in obedience to the orders of a superior, conceiving that he had the right which he claimed, they are not within this Act of Parlia- ment. But if either of these men knew that it was a malicious act on the part of his master, I think then that he would be guilty of the offence charged. Verdict, Not Guilty. SECT. II.] Rex V. Alice. 41 INFANCY. \An infant, if above seven, is capable of crime.] REX V. ALICE. King's Bench. 1338. Lib. Ass. Ann. 12, f. 37, pi. 30 ; Y.B. 11—12 Edw. III. (Rolls Series) p. 627. Alice of W., who was of the age of thirteen years, was burnt by judgment, because she had killed her mistress and because this was adjudged treason. And it was said that by the old law no one within age should be hanged or bear judgment of life or member (fee, but it was found before Spigurnel', J., that an infant within age killed his comrade, and afterwards hid himself, and he was hanged forthwith. For he [Spigurnel] said that the hiding showed knowledge of right and wrong, quia malicia supplet aetatem &c. \But if tie be under fourteen, mens rea must be proved expressly.^ ANONYMOUS. Exchequer Chamber. 1488. Y.B. 3 Hen. VIL f. 1, Hil. pi. 4. Another matter debated [before all the Justices in the Exchequer Chamber] was, that an infant within the age of nine years slew an infant of nine years and confessed the felony. And it was also found that he hid him whom he had killed, and by way of excuse for the blood that was shed on himself, said that it came from his nose. And [the Justices] held that he should be hanged. And Fairfax [J.] said that it had been said by Sir John Fortescue [C. J.] that the cause why one shall be hanged for murder is the example which he sets to other men, but if an infant or a man without discretion kills, he shall not be hanged, for no example is set by him to those who have dis- cretion. 1 Henry Spigurnel sat in the King's Bench under Edw. I. and Edw. II. 42 Select Cases on Criminal Law. [part i. [Inadequate proof of mens rea.^ REX V. OWEN. Oxford Circuit. 1830. 4 Careington & Paykb 236. Indictment for stealing coals. The prisoner was ten years of age, and it was proved that, on the 28th of January, she was standing by a large heap of coals belonging to Messrs Harford & Brothers, and that she put a basket upon her head. This basket was found to con- tain a few knobs of coal, which, in answer to a question put to her by the witness for the prosecution, she said she had taken from this heap. LiTTLEDALE, J., was about to call upon the prisoner for her defence, when Carrington, amicus curiae, suggested that she was entitled to an acquittal. He submitted that a child under seven years of age could not legally be convicted of felony ; and that, in cases where the accused was between the ages of seven and fourteen, it was incumbent on the prosecutor to prove, not only that the ofi'ence was committed, but also that the offender had, at the time, a guilty knowledge that he or she was doing wrong. LiTTLEDALE, J. I Cannot hold that a child of ten years of age is incapable of committing a felony. Many have been convicted under that age. Carrington. — No doubt that is so. A boy, named York, who was only ten years old, was convicted of a murder ; but in that case there was the strongest evidence of guilty knowledge '. LiTTLEDALE, J. — I think I must leave it to the jury. The prisoner was then called on for her defence. LiTTLEDALE, J. (in Summing up), said — In this case there are two questions ; first, did the prisoner take these coals ; and, secondly, if she did, had she at the time a guilty knowledge that she was doing wrong. The prisoner, as we have heard, is only ten years of age ; and, unless 1 Fost. 70. [Editok's Note. He had killed a girl of five, mangled the dead body, and buried it in a dung heap. He was sentenced to death at Bury Assizes in 1748, before Willes, L.C.J. ; who referred the case to the whole of the judges. They, upon consideration, unanimously agreed " That there are so many circum- stances stated which are undoubtedly tokens of a mischievous disposition, that he is certainly a proper subject for capital punishment, and ought to suffer. For it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity." He received, however, several successive reprieves ; and ultimately, after being detained in prison nine years, was pardoned on condition of entering the navy.] SECT. II.] Eex V. Owen. 43 you are satisfied by the evidence that, in committing this offence, she knew that she was doing wrong, you ought to acquit her. Whenever a person committing a felony is under fourteen years of age, the pre- sumption of law is, that he or she has not sufficient capacity to know that it is wrong; and such person ought not to be convicted, unless there be evidence to satisfy the jury that the party, at the time of the offence, had a guilty knowledge that he or she was doing wrong '. Verdict — Not Guilty ; and the foreman of the jury added, " We do not think that the prisoner had any guilty knowledge.'' See also Regina v. Manley, infra. INSANITY. [Insanity -may shoto absence of mens rea.] ANONYMOUS. King's Bench. 1505. Y.B. 21 Hen. YII. f. 31, Mich. pi. 16. A man was arraigned for the murder of an infant. And it was found that at the time of the murder the felon was of non-sane memory. Tlierefore it was awarded that he should go quit. nota bene. [What forms of insanity will do this.] REGINA V. DANIEL M'NAUGHTEN. House of Lords. 1843. 10 Clark and Fin. 200. [The prisoner had been indicted at the Central Criminal Court for the murder of Edward Drummond (Secretary to Sir Robert Peel), 1 It is believed that the youngest person who was ever executed in this country, was a boy between eight and nine years old, named Dean, who was found guilty of burning two barns at Windsor, " and it appearing that he had malice, revenge, craft, and cunning, he had judgment to be hanged, and was hanged accordingly." This case was tried before Whitlock, J., at the Abingdon Assizes, 1629, and is reported in Bmlyn's Edit. Hale's Pleas of the Crown, p. 25, n. (a). 44 Select Gases on Criminal Law. [paet i. by shooting him in the back, as he was walking up Whitehall, on 20th Jan. 1843. The prisoner pleaded Not Guilty. After evidence had been given of the shooting of Mr Drummond and of his death in consequence thereof, witnesses were called on the part of the prisoner, to prove that, at the time of committing the act, he was not in a sound state of mind. The medical evidence was in substance this: — That persons of otherwise sound mind might be afifected by morbid de- lusions ; that the prisoner was in that condition ; that a person so lal^ouring under a morbid delusion might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception ; and that he was not capable of exercising any control over acts which had connection with his delusion ; that it was of the nature of the disease with which the prisoner was affected, to go on gradually until it had reached a climax, when it burst forth with irresistible intensity; that a man might go on for years quietly, though at the same time under its iniluence, but would all at once break out into the most extravagant and violent paroxysms. Some of the witnesses, who gave this evidence, had previously examined the prisoner ; others had never seen him till he appeared in Court, and they formed their opinions on hearing the evidence given by the other witnesses. TiNDAL, C.J., told the jury that the question to be determined was whether at the time the act in question was committed the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. The verdict of the jury was Not Guilty, on the ground of insanity. This verdict, and the question of the nature and extent of the unsound- ness of mind which would excuse the commission of a crime, attracted great attention throughout England and became the subject of a debate in the House of Lords. The House determined to take the opinion of the Judges on the law. Accordingly, on June 19, 1843, all the Judges attended the House of Lords ; when (no argument having been had) the following questions of law were propounded to them : — "1st. — What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redress- ing or revenging some supposed grievance or injury, or of producing some supposed public benefit? SECT. II.] Reg. V. Daniel M'Naughten. 45 "2nd. — What are the proper questions to be submitted to the jury when a person alleged to be afflicted with an insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence ? "3rd. — In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed 1 "4th. — If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused ? "5th. — Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?" Mr Justice Maule gave his own answers separately. . . . Lord Chief Justice Tindal. — "My lords, her Majesty's Judges, with the exception of Mr Justice Maule, who has stated his opinion to your lordships, in answering the questions proposed to them by your lordships' House, think it right in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of apply- ing those answers to cases in which the facts are brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case. As it is their duty to declare the law upon each particular case on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your lordships' questions. "They have, therefore, confined their answers to the statement of that which they hold to be the law upon the abstract questions pro- posed by your lordships ; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your lordships. "The first question proposed by your lordships is this: 'What is the 46 Select Cases on Criminal Law. [part i. law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons ; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of pro- ducing some supposed public benefit?' "In answer to which question, assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that (notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit) he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law ; by which expression we understand your lordships to mean the law of the land. "Your lordships are pleased to inquire of us, secondly: 'What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?' And, thirdly: 'In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?' And as these two questions appear to us to be more con- veniently answered together, we have to submit our opinion to be, that the jury ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put with reference to the party's know- ledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the SECT. II.] Reg. V. Daniel M'Naughten. 47 accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction ; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable. The usual course, therefore, has been, to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong ; and this course we think is correct, accompanied with such observations and explanations as the circum- stances of each particular case may require. "The fourth question which your lordships have proposed to us is this : — 'If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?' To which question the answer must of course depend on the nature of the delusion ; but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the iniluence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self- defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. "The question lastly proposed by your lordships is: — 'Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was pi-esent during the whole tria* and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?' In answer thereto, we state to your lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated ; because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. 48 Select Cases on Criminal Law. [part i. But, where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in the general form ; though the same cannot be insisted on as a matter of right.'' [How insanity is to be proved.^ UNITED STATES v. GUITEAU. U.S. Court of District of Columbia, 1882. 10 Federal Rep. 161. [Charles J. Guiteau was indicted for the murder, on July 2nd, 1881, of James A. Garfield, the President of the United States of America. The prisoner resided in Chicago; he was a lawyer, and had sought in vain to obtain a consulship He attributed his failure to President Garfield's resolute abandonment of the policy which had led recent Presidents to give public appointments as rewards for electioneering services. As the President was entering a room in the railway station at Washington, Guiteau came behind him and fired two pistol-shots into his back. The President lingered several weeks ; and died on Sept. 19 th.] Cox, J., in the course of his summing up to the jury, said : — Murder is committed when a person of sound memory and discretion unlawfully kills a reasonable creature, in being and in the peace of the United States, with malice aforethought. I apprehend that you will have little difficulty in reaching a conclusion as to all the elements which make up this crime, unless it be the one of 'sound memory and discretion' as it is called (which is only a technical expression for a sound mind). A man cannot commit murder if he is labouring under disease of his mental faculties to such an extent that he does*not know what he is doing, or does not know that it is wrong. But the defence of insanity has been so abused as to be brought into great discredit. It has been the last resort in cases of unquestionable guilt ; and has been the excuse of juries for acquittal when their own sympathy and that of the pubUc have been with the accused. Never- theless if insanity to the degree that I have already explained be established, it is a perfect defence to an indictment and must be allowed full weight. You must bear in mind that a man does not become irresponsible by the mere fact of being partially insane. Such a man may retain as much control over his passions as he had when in SECT. II.] United States v. Guiteau. 49 mental health. He may, too, commit offences with which his infirmity has nothing to do ; be sane as to his crime, understand its nature, and be governed in regard to it by the same motives as other people, though on some other matter, having no relation wliatever to it, he may be subject to delusions. In a case reported, a defendant was convicted of cheating by false pretences, and was not saved from punishment by his insane delusion that he was the lawful son of a well-known prince. The first thing, therefore, to be impressed upon you is, that wherever partial insanity is relied on as a defence, it must appear that the crime charged was the product of the morbid con- dition and connected with it as effect with cause ; and was not the result of sane reasoning or natural motives, which the man may be capable of notwithstanding a circumscribed disorder of mind. Secondly, assuming that the infirmity has had a direct influence in producing the crime, we must fix the degree of disorder which will create irresponsi- bility in law. The judicial decisions on this subject have not always been entirely satisfactory. Courts in former times laid down a law of insanity in ignorance of the medical aspects of the subject ; though it could only be properly dealt with through the concurrent light of the two sciences of law and medicine. Hence one theory after another was adopted and discarded by the judges in their efforts to find some common ground where they could combine a due regard for the security of society with humanity towards the afflicted. Nearly forty years ago, one MacNaughten was tried in England for killing Mr Drummond, the private secretary of Sir Robert Peel, mistaking him for the Premier himself. His acquittal on the ground of insanity caused so much excitement that the House of Lords addressed certain questions to the judges in regard to the law of insanity in certain cases. Their answers have been since regarded as settling the law on the subject in England ; and, with some qualification, they have been approved in the United States. It may be well to say a word as to the evidence by which juries are to be guided in this difficult inquiry. That subtle essence which we call "mind" defies, of course, ocular inspection and can only be known by its outward manifestations. By the language and conduct of the man, his thoughts and emotions are read. According as they con- form to, or contrast with, the practice of people of sound mind, the large majority of mankind, we form our judgment as to his mental soundness. For this reason, evidence is admissible to shew that his conduct and language at different times and on different occasions indicated some morbid condition of his intellectual powers; and the more extended the view of his life, the safer is the judgment formed 4 50 Select Cases on Criminal Law. [pakt i. of him. Everything relating to his physical and mental history is relevant. Evidence as to insanity in his parents and immediate relatives may also be pertinent. It is never allowable to infer in- sanity in an accused person from the mere fact of its existence in his ancestors. But when testimony directly tending to prove insane conduct on the part of the accused himself has been given, evidence of his family antecedents is admissible as corroborative of that testimony. The question for you to determine is, what was the condition of the prisoner's mind at the time when this tragedy was enacted? If he then was sufficiently sane to be responsible, it matters not to you what may have been his condition before or after. Yet evidence as to his previous and subsequent conditions is properly admitted; because it throws light, prospectively and retrospectively, upon his condition at the time of the crime. Inasmuch as mental disorders are of gradual growth and of indefinite continuance, if he is shown to have been insane shortly before or shortly after the commission of the crime, it is natural to at least conjecture that he was so at the time of it. But all the evidence must centre around the time when the deed was done. If you find from the whole evidence that at the time of the com- mission of the homicide, the prisoner, in consequence of disease of mind, was incapable of understanding what he was doing or of undei-- standing that it was wrong — as, for example, if he was under an insane delusion that the Almighty had commanded him to do the act, and in consequence of this delusion he was incapable of seeing that it was a wrong thing to do — then he was not in a responsible condition of mind, but was an object of compassion and not of justice, and he ought to be now acquitted. Verdict, Guilty. Guiteau was executed. [^Insane impulse is not, of itself, sufficient.^ REGINA V. BURTON. Kent Assizes. 1863. 3 Foster and Finlason 772. The prisoner, a youth of eighteen, was indicted for the murder of a boy. It appeared that the deceased boy had been playing on the Lines a public place at Chatham, where the prisoner saw him, and was seen near him. SECT. 11.] Regina v. Burton. 51 Some hours afterwards, the child's dead body was found on the Lines. The throat was cut and there were marks of a violent struggle. The police were engaged in prosecuting their inquiries, when the prisoner gave himself up, and admitted the act, recounting all the circumstances with perfect intelligence. He added, "I knew the boy, and knew his mother, but I had no particular ill-feeling against the boy; only I had made up my mind to murder somebody." He also said that he had wiped his hands and the knife. The Superintendent of Police in cross-examination admitted that when the prisoner said he had made up his mind to murder somebody, he said he was "tired of his life. "...A person to whom the prisoner had been apprenticed stated that he had a very vacant look, and very often would drop his tools and run out of the shop and pace backwards and forwards as if absent in mind Other witnesses deposed to his "vacancy of mind," and strange ways. He had been known to eat a piece of soap and a piece of a cat, and to bite a candle On other occasions, however, he seemed sensible enough. A doctor deposed that the prisoner's mother had twice been to a lunatic asylum and his brother was of weak intellect.... The witness had attended the prisoner himself on two occasions, and believed he was labouring under what, in the profession, would be considered as "moral insanity," that is, he knew perfectly well what he was doing but had no control over himself. By the moral feelings he meant the propensities; which may be diseased while the intellectual faculties are sound. Counsel for the prisoner proposed to ask the witness whether, having heard the evidence, he was of opinion that the prisoner was sane or insane at the time of the doing of the act ; but the learned Judge would not allow the question to be put, as it was the very question the jury were to determine. WiGHTMAN, J., in summing up the case, said : As there was no doubt about the act the only question was whether the prisoner, at the time he committed it, was in such a state of mind as not to be responsible for it. The prisoner's account of it was that he had done it from a morbid feeling ; that he was tired of life and wished to be rid of it. No doubt prisoners had been acquitted of murder on the ground of insanity; but the question was what were the cases in which men were to be absolved from responsibility on that ground. Hatfield's case differed from the present, for there wounds had been received on the head which were proved to have injured the brain. In the more recent case of Macnaughten, the judges laid down the rule to be, that there must, to raise the defence, be a defect of reason from disease 4—2 52 Select Cases on Criminal Law. [part i. of the mind, so as that the person did not know the nature and quality of the act he committed, or did not know whether it was right or wrong. Now to apply this rule to the present case would be the duty of the jury. It was not mere eccentricity of conduct which made a man legally irresponsible for his acts. The medical man called for the defence defined homicidal mania to be a propensity to kill; and described moral insanity as a state of mind under which a man, perfectly aware that it was wrong to do so, killed another under an uncontrol- lable impulse. This would appear to be a most dangerous doctrine and fatal to the interests of society and to security of life. The question is whether such a theory is in accordance with law. The rule laid down by the judges is quite inconsistent with such a view ; for it was that a man was responsible for his actions if he knew the difference be. tween right and wrong. It was urged that the prisoner did the act to be hanged, and so was under an insane delusion ; but what delusion was he under ? So far from it, it shewed that he was quite conscious of the nature of the act and of its consequences. He was supposed to desire to be hanged ; and in order to attain the object committed murder. That might shew a morbid state of mind, but not delusion. Homicidal mania again, as described by the witnesses for the defence, shewed no delusion. It merely shewed a morbid desire for blood. Delusion meant the belief in what did not exist. The question for the jury was whether the prisoner at the time he committed the act was labouring under such a species of insanity as to be unaware of the nature, the character, or the consequences of the act he committed, — in other words whether he was incapable of knowing that what he did was wrong. If so, they should acquit him ; if otherwise, they should find a verdict of guilty. Guilty. Sentence, Death. The prisoner was executed. [Insane impulse.^ REGINA V. HAYNES. Hampshire Assizes. 1859. 1 Foster and Finlason 666. Murder. Insanity. The prisoner, a soldier, was charged with the murder of Mary MacGowan, at the Camp at Aldershot. The deceased was a woman with whom the prisoner had been on the most friendly terms up to the moment of the commission of the offence. No SECT. 11.] Regina v. Hayms. 53 motive was assigned for the perpetration of the act. And general evidence was given that the prisoner having, while in Canada, seduced a young woman under a promise of marriage, had been unable to fulfil it by reason of his regiment having been ordered home, and his mind had been much affected by the circumstance... Bramwell, B., in summing up to the jury, said ; — As to the defence of insanity, it has been urged for the prisoner that you should acquit him on the ground that, it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called a powerful and irresistible influence, or homicidal tendency. But I must remark as to that, that the circumstance of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Motives exist unknown and in- numerable which might prompt the act. A morbid and restless (but resistible) thirst for blood would itself be a motive urging to such a deed for its own relief. But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suS'ering under such an influence — the restraint of relision. the restraint of conscience, and the restraint of law. But if the influence itself be held a legal excuse, rendering the crime dis- punishable, you at once withdraw a most powerful restraint — law, forbidding and punishing its perpetration. We must therefore return to the simple question you have to determine— did the prisoner know the nature of the act he was doing ; and did he know that he was doing what was wrong ? Guilty. Sentence, Death. The prisoner was reprieved. [Note. In the case of Mrs Brough, indicted for the murder of her children and tried at the Surrey Summer Assizes, 1856, coram Erie, J., the law was laid down in precisely the same way : the defence set up being that of " homicidal impulse," from insanity, suggested as having been likely to arise from a blow on the head.] KEGINA V. TYLER. [See this case, below, under the head of Duress.] 54 Select Gases on Criminal Law. [part i. INTOXICATION. [Drunkenness is compatible with mens rea.] REX V. MEAKIN. Oxford Assizes. 1836. 7 Carrington and Payne 297. The prisoner was indicted for stabbing Benjamin Finney, with intent to murder him. There were also the usual counts laying the intent to do grievous bodily harm, &c. It appeared that Benjamin Finney was a, constable ; and that the prisoner went into the house of Samuel Finney, where he was very abusive, and Samuel Finney desired Benjamin Finney to turn him out, which he did ; and while he was taking him off the premises, the prisoner stabbed him with a fork. It was proved that the prisoner said he should not have done it if he had not been drunk, and it appeared that he was " something the worse for liquor.'' Alderson, B. (in summing up). — ^It is my duty to tell you that the prisoner's being intoxicated does not alter the nature of the offence. If a man chooses to get drunk, it is his own voluntary act : it is very different from a madness which is not caused by any act of the person. That voluntary species of madness which it is in a party's power to abstain from, he must answer for. However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk when he made an intemperate use of it.... But where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no eflFect on the consideration of the malicious intent of the party. Verdict, Guilty. [But it may cause such a Mistake of Fact as will excuse^ REGINA V. GAMLEN. Bristol Assizes. 1858. 1 Foster and Finlason 90. Assault. The charge arose out of an affray at a fair ; and there seemed some ground for supposing that the prisoner acted under appre- hensions of an assault upon himself. All concerned were drunk. SECT. II.] Regina v. Gamlen. 55 Ceowder, J. ...Drunkenness is no excuse for crime. But in con- sidering whether the prisoner apprehended an assault on himself you may take into account the state in which he was. Verdict, Not guilty. [Or may disprove the presence of some special form, of mens rea.] THE STATE v. BELL. Supreme Court of Iowa. 1870. 29 Stiles 316. The prisoner was indicted for a burglary in entering a house by night with intent to commit the crime of larceny. The evidence shewed that he had never before been charged with crime and was a man of good moral character. He had spent the evening of the night when the alleged burglary was committed (which was a New Year's Eve) in company with some friends ; with whom he sat drinking until about 11 p.m. A few hours after, he was found in the house specified in the indictment ; and was at once arrested. He was then in a state of intoxication. At the trial before the District Court of Des Moines, the Judge was asked by defendant's counsel to tell the jury that if they should conclude from the evidence that the defendant entered the house through drunkenness, without knowing where he was and with no intent to steal or commit any felony, then they ought to acquit. He refused to do so. The prisoner was convicted. A motion was made in the Supreme Court of Iowa to reverse this conviction on the ground of mis-direction. Wright J. The offence here would not be complete unless the dwelling-house were broken with the intent to commit a felony. If that intent existed, it would make no difference whether the accused was drunk or sober. A criminal intent may exist in the mind of a man who is under the influence of intoxicating liquor : and if it do, the intoxication is no excuse. But if the defendant's drunkenness was such as to take away from his act all criminal intent, then the act was not criminal. The drunkenness is a proper circumstance to be weighed by the jury in determining whether there existed the intent to commit the specific felony charged. If, as he alleges, he blundered into this house through a drunken mistake, under such circumstances as indicate inabihty to form any definite purpose and especially to form the purpose of committing a larceny, then he is not guilty of the 56 Select Cases on Criminal Law. [part i. offence charged. If under such circumstances he had taken the property of another, it would not have been larceny ; there being the absence of the requisite specific legal intent to steal. If so, the enter- ing would not be burglarious. Conviction reversed. DURESS. [Fear of death fnay excuse even Treason.^ REX V. MOGROWTHER. Special Commission. 1746. Foster's Crown Law 13. In the case of Alexander M^Growther, there was full evidence touching his having been in the rebellion; and his acting as a lieutenant in a regiment in the rebel army called the Duke of Perth's regiaient. The defence he relied on was, that he was forced in. And to that purpose he called several witnesses ; who in general swore that on the 28th of August the person called Duke of Perth, and the Lord Strathallan, with about twenty Highlanders, came to the town where the prisoner lived ; that on the same day three several summonses were sent out by the Duke, requiring his tenants to meet him, and to conduct him over a moor in the neighbourhood, called Luiny Moor ; that upon the third summons the prisoner, who is a tenant to the Duke, with about twelve of the tenants appeared ; that then the Duke proposed to them that they should take arms and follow him into the rebellion ; that the prisoner and the rest refused to go ; whereupon they were told, that they should be forced, and cords were brought by the Duke's party in order to bind them ; and that then the prisoner and ten more went off, surrounded by the Duke's party. These witnesses swore, that the Duke of Perth threatened to burn the houses, and to drive off the cattle of such of his tenants as should refuse to follow him. They all spake very extravagantly of the power which lords in Scotland exercise over their tenants ; and of the obedience (even to the joining in rebellion) which they expect from them. Loud Chief-Justice Lee, in summing up, observed to the jury, that SECT. II.J Rex V. M'Growther. 57 there is not, nor ever was, any tenure which obligeth tenants to follow their lords into rebellion. And as to the matter of force, he said that the fear of having houses burnt or goods spoiled, supposing that to have been the case of the prisoner, is no excuse in the eye of the law for joining and march- ing with rebels' The only force that doth excuse is a force upon the person and present fear of death ; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man who makes force his defence, to shew an actual force, and that he quitted the service as soon as he could ; agreeably to the rule laid down in Oldcastle's case, that they joined pro timore mortis, and recesserunt quwm cito potuerunt. He then observed that the only force the prisoner pretends to was on the 28th of August ; and that he continued with the rebels and bore a commission in their army till the surrender of Carlisle, which was on or about the 30th of December. The jury without going from the bar found him guilty. But he was not executed. N.B. All the Judges that were in town were present, and concurred in the points of law. KB. Many of the Scotch prisoners made force their defence, and produced the same sort of evidence as M^Growther did ; and the same directions in point of law were given as in his case : and the matter of fact, whether force or no force, and how long that force continued, with every circumstance tending to shew the practicability or imprac- ticability of an escape, was left to the jury on the whole evidence. [But not a fear of any lesser violence.] REGINA V. TYLER AND PRICE. Maidstone Assizes. 1838. 8 Caerington and Payne 616. The prisoners were indicted for the murder of Nicholas Meares. The first count of the indictment charged that John Thorn, otherwise called Sir William Courtenay, on the 31st day of May, 1838, at the ville of Dunkirk, had murdered the deceased by shooting him with a 1 N.B. If threats of this kind were an excuse, it would be in the power of any leader in a rebellion to indemnify all his followers. 58 Select Cases on Criminal Law. [part i. pistol, and that the prisoners were feloniously present, aiding and abetting. The second count charged the prisoners with the murder, as principals in the first degree. It appeared that John Thorn, who called himself Sir William Courtenay, had assembled a great number of persons together, and led them about the neighbourhood of Canterbury, promising them plenty in this world and happiness hereafter, and that he asserted that he was above all earthly authority, and was the Saviour of the world. It was proved that, on one occasion, when the prisoner Tyler said to him — "Sir William, I heard a man say that you were a fool and an impostor, and that he would not mind taking you," Thorn replied, " If any one comes I shall try my arm ; I can clap my left hand on my right arm and slay ten thousand men ; if the constables come I shall cut them down like grass." It further appeared that about two days after Thom had caused this assemblage of persons, a warrant for his apprehension was granted by Dr Parr, a magistrate. This warrant was placed in the hands of John Meares, the constable of Baughten, the parish within which the ville of Dunkirk is situated, and that he took with him the deceased, who was his brother, and also a person named Edwards, as his assistants, and proceeded to a house situated in a wood called Bossenden, at which Thom was ; some of the men who were with Thom being armed with bludgeons, and placed as guards about the house. On Thom being informed of the arrival of the deceased and his brother, he said, " Are you constables?" The deceased replied, "I am"; upon which Thom shot him with a pistol ; and then made a thrust at John Meares with a dagger, but John Meares escaped the blow and ran away, as did Edwards. Upon this, Thom came back and drew a sword, with which he hacked the deceased ; and the prisoners and two other persons, by the order of Thom, afterwards took the deceased, who was still alive, and threw him into a dry ditch, where they left him. They then returned to the house to breakfast, when Thom said, "I have killed his body, but I have saved his soul." Thom afterwards killed Lieu- tenant Bennett, and was himself killed by the military. Shee addressed the jury for the prisoners. It is quite clear that Thom was an insane person, and being so, he could not be guilty of felony; and by consequence, the prisoners could not be guilty of aiding and abetting him in the commission of felony. This, therefore, will dispose of the first count of the indictment. With respect to the second count, which charges the prisoners as principals in the first degree ; theirs were not the hands that fired the pistol, they can only be made liable if the act was done in the prosecution of some unlawful SECT. II.] Regina v. Tyler and Price. 59 purpose in which all the parties were engaged. Now, here Thorn and his followers are not shewn to have had any distinct or definite purpose of any kind ; and, therefore, there could not be any combi- nation or community of purpose between Thorn and the prisoners. I also submit that the prisoners did what is imputed to them from a fear of personal violence to themselves at the hands of Thom. Lord Denman, C.J. (in summing up). In order to make out that part of the charge which imputes to Thom the act of murder, and that these persons were guilty of aiding and abetting him to commit the murder, it would be necessary to shew that Thom was a person capable of committing that murder. In order to make out the malicious intention imputed in the indictment to the act of Thom, he must be shewn to have been of sound mind at the time when he committed it, for it is a maxim of law that persons not of sound mind cannot be held responsible for their acts. It seems to me, therefore, that if it appears in evidence that Thom was not, at the time of committing the act, of sound mind, you must acquit the prisoners upon the first count of the indictment ; for there will be no foundation on which the accessory crime can rest. I must own, that the impression on my mind is, that Thom was a man of unsound mind. I think, too, that if he was now before us on his trial, you could not safely say that he was in a condition to be answerable for his acts. It is not an opinion which I mean to lay down as a rule of law to be applicable to all cases, that fanaticism is a proof of unsoundness of mind : but there was in this particular instance, so much religious fanaticism — such violent excitement of mind — such great absurdity and extreme folly, that if Thom was now on his trial, it could hardly be said, from the evidence, that he could be called on to answer for his criminal acts. That, therefore, simplifies the question you will have to decide, and confines it to the second count of the indictment. There these persons are themselves charged with having ^committed the ofience. If they were aware of the malignant purpose entertained by Thom, and shared in that purpose with him, and were present aiding and abetting and assisting him in the commission of acts fatal to life, in the course of accomplishing this purpose, then no doubt they are guilty as principals on this second count. In Hawkins's Fleas of the Crown', it is said, "where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and afirays, and in so doing, happen to kill a man, they are all guilty of murder. For they must at their peril abide the event of their 1 Book I. oh. 13, 8.51. 60 Select Cases on Criminal Law. [part i. actions, who wilfully engage in such bold disturbances of the public peace, in open opposition to and defiance of the justice of the nation." But in all such cases, the fact must appear to have been committed in prosecution of the purpose for which the party assembled. Here it is argued that, as Thom and his followers are not shewn to have had a distinct and definite purpose in view in assembling together, there could not be any general combination for the execution of any such purpose, and the defendants must therefore be acquitted. I think that the evidence will lead you to a very difierent conclusion. It seems to me wholly unimportant whether the parties had a well- defined and particular mischief to bring about as the result of their combination. For I think if their object was "to resist all opposers in the commission of any breach of the peace,'' and if for that purpose the parties assembled together and armed themselves with dangerous weapons, — in that case it appears to me that, however blank might be the mind of Thom as to any ulterior purpose, and however the minds of the prisoners might be unconscious of any particular object, still if they contemplated a resistance to the law- fully constituted authorities of the country, in case any should come against them while they were so banded together, there would be a common purpose; and they would be answerable for any thing which they did in the execution of it. If any man is found aiding another, of whose ill intentions he is thoroughly apprised, he is responsible. It will be for you to say whether, from what was done by these men both before and after the killing of Nicholas Meares, they did not intend this general resistance to the law. In speaking of malice "aforethought" it is proper you should know that that expression does not mean premeditated personal hatred or revenge against the person killed ; but it means that kind of unlawful purpose which, if persevered in, must produce mischief such as, if accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be proof of malice prepense. With regard to one argument you have heard, that these prisoners were induced to join Thom and to continue with him from a fear of personal violence to themselves. I am bound to tell you that where parties for such a reason are induced to join a mischievous man, it is not their fear of violence to themselves which can excuse their conduct to others. You probably, gentlemen, never saw two men tried at a criminal bar for an offence which they had jointly committed, where one of them had not been to a certain extent in fear of the other, and had not been influenced by that fear in the conduct he pursued. Yet that circumstance has never been received by the law as an excuse for his crime, and the law is SECT. II.] Regina v. Tyler and Price. 61 that no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind. You will, therefore, say, whether these two men were so far cognisant of an illegal purpose in Thorn, and joined in his acts, that they are guilty of the murder which the hand of Thom committed. You will say whether they were abetting Thom in the blow he gave the deceased : for if they were, the blow of Thom was the blow of them all, and they are answerable for it. If you think that they kept together with the knowledge of any general purpose of resistance to the law, then they are guilty. It cannot be too often repeated that the appre- hension of personal danger does not furnish any excuse for assisting in doing any act which is illegal. You will, therefore, discard that as an excuse, and say whether you find that Thom was a dangerous and mischievous person ; and that these two prisoners knew he was so, yet kept with him, aiding and abetting him by their presence, and con- curring in his acts. If you do so, you will find them guilty, for they are then liable as principals for what was done by his hand. Verdict — Not guilty, on the first count. Guilty, on the second. NECESSITY. [The necessity of avoiding starvation does not excuse Murder.^ EEGINA V. DUDLEY AND STEPHENS. Queen's Bench Division. 1884. L.R. 14 Q.B.D. 273. The master and mate of the yacht Mignonette were indicted at the Assizes at Exeter before Huddleston, B., for the murder of a cabin-boy named Parker. At the suggestion of the learned judge, the jury found the following special verdict, adding thereto a strong expression of compassion for the sufferings that the prisoners had undergone : — "That on July 5, 1884, the prisoners, with one Brooks, all able- bodied English seamen, and the deceased, an English boy between 17 and 18, the crew of an English yacht, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were com- pelled to put into an open boat ; that in this boat they had no supply of water and no supply of food, except two 1 Ib.-tins of turnips, and for three days they had nothing else to subsist on ; that on the fourth day 62 Seleet Cases on Criminal Law. [part i. they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the 20th day when the act now in question was committed ; that on the 1 2th day the remains of the turtle were entirely consumed, and for the next eight days they had nothing to eat ; that they had no fresh water, except such rain as they from time to time caught in their oilskin capes ; that the boat was drifting on the ocean, and was probably more than 1000 miles from land ; that on the 18th day, when, they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted ; that on the day before the act in question Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots ; that on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed if no vessel was in sight by the next morning the boy should be killed ; that next day, no vessel appearing, Dudley told Brooks he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed ; that Stephens agreed to the act, but Brooks dissented from it ; that the boy was lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to being killed ; that Dudley, with the assent of Stephens, went to the boy, and telling him his time was come, put a knife into his throat and killed him ; that the three men fed upon the boy for four days ; that on the fourth day after the act the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration ; that they were carried to the port of Falmouth, and committed for trial at Exeter ; that if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine ; that the boy, being in a much weaker condition, was likely to have died before them ; that at the time of the act there was no sail in sight, nor any reasonable prospect of relief ; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy or one of themselves they would die of starvation ; that there was no appreciable chance of saving life except by killing some one for the others to eat ; that assuming any necessity to kill any one, there was no greater necessity SECT. II.] Regina v. Dudley and Stephens. 63 for killing the boy than any of the other three men ; but whether, upon the whole matter, the prisoners were and are guilty of murder the jury are ignorant, and refer to the Court." The five senior Judges of the Queen's Bench Division sat as a Divisional Court to consider the effect of this verdict. LoBD Coleridge, in the course of delivering their judgment, said : — '■ ...We are dealing with a case of private homicide, not one imposed upon men in the service of their sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffend- ing and unresisting boy was clearly murder, unless the killing can be justified by some well-recognized excuse admitted by law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called "necessity." But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not neces- sarily illegal, yet the absolute divorce of law from morality would be of fatal consequence ; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead, these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others ; from which in no country, least of all it is to be hoped, in England, will men shrink, as, indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. " Necesse est ut earn, non ut vivam," is a saying quoted by Lord Bacon himself with high eulogy, in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from 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 result- ing from the principles of heathen ethics. It is enough in a Christian country to remind ourselves of the example which we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity ? By what measure is the comparative value of lives to be measured 1 Is it to be strength, or intellect, or what 1 It is plain that the principle leaves to him who is to profit by it to deter- 64 Select Cases on Criminal Law. [part i. mine the necessity which will justify him in deliberately taking another's life to serve his own. " So spake the fiend; and with necessity, The tyrant's plea, excused his devilish deeds." In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No." It is not suggested that in this particular case the deeds were devilish ; btlt it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and declare it according to their judgment ; and, if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise the prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it. It must not be supposed that in refusing to admit ternptation to be an excuse for crime it is forgotten how terrible the temptation was ; how awful the suffering ; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is there- fore our duty to declare that the prisoners' act in this case was wilful murder; that the facts as stated in the verdict are no legal justification of the homicide ; and to say that in our unanimous opinion they are upon this special verdict guilty of murder. COVERTUEE. [Husband's mere command, if he be present, raises a presumption 0/ duress.^ ANONYMOUS. King's Bench. 1353. Lib. Ass. Ann. 27, f. 137, pi. 40. A woman was arraigned for that she had feloniously stolen two shillingsworth of bread. And she said that she did it by the com- mandment of him who was at that time her husband. And the SECT. II.] Anonymous. 65 Justices for pity's sake would not hold her by her confession but took an inquest. By which it was found that she did it by the coercion of her husband and against her will. Therefore she went quit. And it was said that if she acted by the command of her husband, without any coercion, it would be no felony. [Husband's command.'^ REGINA V. SAMUEL SMITH AND SARAH SMITH. Ceown Case Reserved. 1858. Deaesly akd Bell 553. The following case was reserved and stated by Channell, B. At the last Assizes for the county of Gloucester the said Samuel Smith and Sarah Smith were jointly tried before me and found guilty on a count charging them with feloniously wounding one John Leach with intent to disfigure him, and in another count with intent to do the said John Leach grievous bodily harm. For the purposes of this case the conviction of Sarah Smith is to be deemed and taken to be a good conviction, unless the same ought to be reversed by reason of the facts following found by the jury, viz. that the said Sarah Smith was at the time of the commission of the offence the wife of the said Samuel Smith ; that she acted under the coercion of her husband ; and that she herself did not personally inflict any violence upon the said John Leach. A verdict of guilty was entered against the husband and wife. I passed sentence on the said Samuel Smith. I reserved for the consideration of this Court the question whether upon the afoi'esaid finding the conviction of the said Sarah Smith was a good conviction ; respiting the sentence upon her and taking bail for her appearance hereafter to receive judgment if the conviction should be affirmed. The question for the opinion of the Court is, whether Sarah Smith, the wife of the said Samuel Smith, having acted under his coercion, and not having herself inflicted any violence on the said John Leach, can be properly convicted of the offence before mentioned. It appeared on the trial that the wife, acting, as the finding of the jury established, under the coercion of her husband, wrote letters to the prosecutor pretending that she had become a widow, and re- questing a meeting at a distant place. The meeting was granted, K. 5 66 Select Gases on Griminal Law. [part i. and the wife, dressed as a widow, met the prosecutor at a railway station, and induced him to go with her to a lonely spot where the husband fell upon him and inflicted the injuries alleged in the in- dictment. This case was considered on the 24th April, 1858, by Pollock, C. B., WiLLBS, J., Bramwell, B., Channell, B. and Btles, J. No counsel appeared. Pollock, V,. B. The jury have disposed of this case by their finding. They have found that Sarah Smith was a married woman ; that she acted under the coercion of her husband ; and that she herself did not personally inflict any violence upon the prosecutor. The con- viction therefore, so far as it extends to her, must be reversed. Conviction of Sarah Smith reversed. \ExGept in the gravest crimes.] ANONYMOUS. Cambeidge Assizes. 1664. Keltng 31. It was propounded to all the Judges : If a man and his wife go both together to commit a burglary, and both of them break a house in the night and enter and steal goods ; what oifence is this in the wife ? And agreed by all that it was no felony in the wife. For, the wife being together with the husband in the act, the law supposeth the wife doth it by coercion of the husband. And so it is in all larcenies. But as to murder; if husband and wife both join in it, they are both equally guilty. Vide the case of the Earl of Somerset and his lady, both equally found guilty of the murder of Sir Thomas Overbury by poison- ing him in the Tower of London. (2 Howell's State Trials, 911.) [But the presumption may be rebutted by wife's activity in the crimeA REGINA V. THOMAS CRUSE AND MARY CRUSE. Crown Case Reserved. 1838. 2 Moody 53; 8 C. and P. 541. The prisoners were tried at the Oxford Summer Assizes, 1838, before Mr Justice Pattbson, on an indictment under 7 W. IV. and 1 Vict, c. 85, s. 2, which charged that the prisoner Thomas, on the 4th of SECT. II.] Regina v. Thomas Cruse and Mary Cruse. 67 June at Thatoham, feloniously did assault Charlotte Heath, and that he did cause unto the said Charlotte Heath a certain bodily injury dangerous to life, by striking and beating her with his hands and fists on her head and back, by kicking her on the back, by seizing and lifting her and striking her head against a wooden beam of a ceiling, by casting, throwing, and flinging her against a brick floor, with intent feloniously to kill and murder her; by reason whereof the said Charlotte Heath was grievously injured, and her life greatly endangered, agaiust the statute, &c. Mary Cruse was charged as being present, aiding and abetting. The prisoners pleaded not guilty. It appeared by the evidence that both the prisoners in company had ill-used Charlotte Heath, a girl of seven years of age, daughter of Mary Cruse. Whereupon Mr Carrington for Mary Cruse contended that she was entitled to be acquitted as having acted under the coercion of her husband ; and that the only excepted cases were treason and murder. The learned Judge thought otherwise, and put the case to the jury as to both. The jury acquitted botli prisoners of the felony, not being satisfied that they had any intent to murder; but found them guilty of the assault, under the eleventh section of the 7 W. IV. and 1 Vict. c. 85. The learned Judge respited the judgment ; and requested the opinion of the Judges on the point with regard to the wife being under the coercion of her husband. This case was argued before all the Judges (except Littledale, J., Park, J., and Bolland, B.), in Michaelmas term, 1838. Carrington for the prisoners. The wife must be taken to be acting under the coercion of the husband when present, and therefore is entitled to an acquittal; except in cases of treason and murder, to which the presumption is held not to apply. TiNDAL, C. J. Suppose the husband to be a cripple and confined to his bed, his presence then would not be sufficient. Vaughan, J. There was a case of arson before me on the Home Circuit. The man and wife were tried together, and it appeared that the man, though present, was a cripple and bedridden in the room, and I held, after conferring with my Lord Chief Justice Tindal, that the circumstances under which the man was, repelled the presumption of 1 This was a case of house-burning, with intent to defraud the insurance office. Tried at Maidstone Spring Assizes, 1838. 5—2 68 Select Cases on Criminal Law. [part i. Carrington. In the case of Sexy. Archer, Moody's C. C. 143., it was held that the mere fact of the wife's being the more active of the two could not repel the presumption if the husband were actually present. Paeke, B. An assault with an intent to commit murder may be within the exception of murder, but the diflSculty does not arise here ; it is sufficient to dispose of this case, that they are acquitted of the felony. Carrington. The jury ought to have been told to acquit the wife, if they thought there was a felony committed. As to the text writers Lord Hale at first, 1 Hale, P. C. 45, 47., applies the presumption of coercion to all cases except treason and murder; but in later passages (vol. i. 4.34, 516), manslaughter is also excepted. In 1 Hawkins, c. i. p. 4, robbery is also introduced as excepted. But it was decided in Kel. 31, by the twelve Judges, that the presumption in favour of the wife applies to burglary. Blackstone in the first volume only excepts treason and murder : in the fourth volume he excepts crimes that are mala in se and prohibited by the law of nature, such as murder and the like. Alderson, B. There was a case on the Northern Circuit in which Lord Chief Baron Thompson laid it down, that the presence of the husband raised only a prima facie presumption that the ofience was committed under coercion'. Carrington. It would appear from the case of Rex v. Price, 8 C. and P. 19, and Bex v. Conolly there cited, that the presumption is not limited to felony; as there the women were acquitted in misdemeanor for uttering counterfeit coin. Aldeeson, B. It is decided in the case of Regina v. Ingram, 1 Salk. 384, that husband and wife may be jointly convicted of an assault ; which is aU these parties are convicted of. Lord Abinger. This case was one that must have been left to the jury. And they have convicted the parties of an ofience of which they may be jointly guilty. The Judges held the indictment sufficient and the conviction good, as it was for misdemeanor. ' Rex V. Hughes, 1 Eussell on Crimes, 18. SECT. II. J The Queen \. North of England Railway Comp. 69 CORPORATIONS. THE QUEEN v. THE GEEAT NORTH OF ENGLAND RAILWAY COMPANY. Queen's Bench. 1846. 9 Adolphus and Elus. N. S. 315. [Indictment for obstructing the Queen's highway. Plea, Not guilty. Issue thereon.] On the trial, before Wightman, J., at the Durham Spring Assizes, 1845, evidence was given, on the part of the prosecution, to shew that the Company had cut through a carriage road with the railway ; and had carried the road over the railway by a bridge not satisfying the statutory provisions. For the defendants, it was objected that no indictment for a misfeasance could be maintained against a corpora- tion. A verdict was found for the Crown, leave being reserved to move to enter a verdict for the defendants or to arrest the judgment. . . . Granger, Otter and Bovill shewed cause. The dictum of Holt, C. J., in an Anonymous^ case in Modern Reports, will be relied upon for the defendants. He is reported as saying : " A corporation is not indict- able, but the particular members of it are.'' It does not appear what the facts there were, nor whether the indictment was for a misfeasance or a nonfeasance. [Lord Dbnman, C. J. referred to Regina v. Birming- ham and Gloucester Railway Company^.'\ It was there held that a corporation might be indicted for not obeying a statute : and this was assumed .in Rex v. The Severn and Wye Railway Company^. These two cases, at least, shew that Lord Holt's dictum, as reported, is not now law : and by the judgment delivered in the former the dictum is distinctly overruled.... It is not necessary for the prosecutors here to contend that an indictment would lie for any misfeasance involving a breach of the peace : a murder, for instance, could not be conceived to be authorised by the corporation seal. That is the distinction sug- gested in Regina v. Birmingham and Gloucester Railviay Company', in the judgment of this Court, where Hawk. P. C. B. 1, c. 65. s. 13', is cited. But for that which is analogous to a mere trespass on land, an indictment may lie. The tendency of modern decisions has been to make corporations, criminally as well as civilly, amenable like indi- 1 12 Mod. 559. Case 935. ^ 3 Q.B. 223. ' 2 B. and Aid. 646. ' Vol. 11. p. 58, 7th ed. 70 Select Oases on Criminal Law. [part i. viduals. . . .And, in Beverley v. The Lincoln Gas Light and Coke Company^ and Church v. Tlte Imperial Gas Light and Coke Company^ it was held that assumpsit, on a contract not under seal, might be maintained against and by a corporation. In the former of these two cases, the Court expressed a readiness to sanction any decisions which they found introducing a relaxation of " a rule established in a state of society very diiferent from the present, at a time when corporations were com- paratively few in number ; and upon which it was very early found necessary to engraft many exceptions." In Church v. The Imperial Gas Light and Coke Company^ the Court said : " Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the excep- tion has prevailed." Here the corporation is a railway company, with the ordinary powers of interfering with roads on certain conditions ; and the offence charged is peculiarly one likely to be committed in the performance of acts which the corporation may have occasion to do. No difficulty exists as to connecting them with such acts. Bex v. Medley' shews that members of a company, who authorise their servants to commit an act amounting to a nuisance, are liable to be indicted with such servants : it follows that the corporate body, which has the power of authorising an act under seal, is indictable for such act if it be a breach of the law. The common law punishment for a nuisance is fine, or imprisonment, or both. The first of these can be inflicted on a corporation. And the reasoning which the Court used in Rex v. Trqffbrd* seems applicable. It was there said that an action on the, case would have lain ; and that it followed that an indictment lay. Here trespass would lie. That which, if committed against an indi- vidual, would be ground for an action, is ground for an indictment, if committed against the public. Reference may perhaps be made to The Case of Sutton's Hospital^, where it is said that a corporation aggregate " cannot commit treason, nor be outlawed, nor excommunicate, for they have no souls." But that is met by the distinction already pointed out : no actual breach of the peace, perhaps, can be the subject of indictment against a corporation ; nor can the judgment proper to treason or felony be executed upon them. But they can, by their servant, obstruct a highway ; and may be fined for doing so, or may be compelled to abate.... Knowles, Bliss and Joseph Addison, contr^. Admitting, for the sake of the argument, that a corporation is liable to actions upon deeds under the corporate seal, for acts authorised to be done under the corporate 1 6 A. and E. 829. = g A. and E. 846. '■> 6 C. and P. 292. <> 1 B. and Ad. 874, 886. » 10 Eep. 1 a, 32 b. SECT. II.] The Queen v. North of England Railway Comp. 71 seal, and for some acts of so ordinary a kind that they may be com- manded without seal,« and also that, according to Regina v. Birmingham and Gloucester Railway Company \ a corporation may be indicted for a nonfeasance, it will not follow that an indictment lies against them for a misfeasance. The prosecutors' counsel, in this last case, distinguished expressly between a misfeasance and a nonfeasance, admitting that an indictment would not lie for the former. That distinction appears to be adopted by the Court ; and there is good reason for it. For a non- ' feasance there would be no other remedy, except in the cases where mandamus lies, inasmuch as the. omission cannot be the omission of any particular individual. But, where an indictable act is done, the individual doing it may be indicted, and so may any individual members of the corporation who have given the illegal command. But suppose, after a corporation had been indicted for the act and punished, such individuals were indicted. Could they support a plea of auterfois convict by shewing the conviction of the corporation ? Or are they to be punished twice ; once as individuals, and once as members of the body corporate ? It is admitted, on the other side, that the doctrine stated in Hawkins, and sanctioned by this Court in Regina v. Birm,ing- ham and Gloucester Railway Company^, excludes cases of violence : and 6 Vin. Abr. 309, Corporations (Z), pi. 2 is to the same effect. Yet a road might be obstructed by violent means ; and indeed it is im- possible to charge an actual obstruction without alleging force, and 'it must be supported by proof of what is legally a species of violence. Nor, again, would it follow, from a civil action for trespass being main- tainable, that an indictment for the same act is so. An injury com- mitted out of the realm, an assault by an insane person, an assent to a trespass previously committed for the defendant's benefit, would be grounds for an action ; but not for an indictment. The object of an action is to give the injured party compensation ; that of an indict- ment, to inflict punishment, for the sake of example, upon acts injurious to the public. Cur. adv. vult. Lord Denman, 0. J., now delivered the judgment of the Court. The question is, whether an indictment will lie at common law against a corporation for a misfeasance ; it being admitted, in con- formity with undisputed decisions, that an indictment may be main- tained against a corporation for nonfeasance. All the preliminary difficulties, as to the service and execution of process, the mode of appearing and pleading, and enforcing judgment, are by this admission swept away. But the argument is, that for 1 3 Q. B. 22.9. 2 3 Q. B. 232. 72 Select Gases on Criminal Law. [part i. a wrongful act a corporation is not amenable to an indictment, though for a wrongful omission it undoubtedly is ; assuming, in the first place, that there is a plain and obvious distinction between the two species of offence. No assumption can be more unfounded. Many occurrences may be easily conceived, full of annoyance and danger to the public, and involving blame in some individual or some corporation, of which the most acute person could not clearly define the cause, or ascribe them with more correctness to mere negligence in providing safeguards or to an act rendered improper by nothing but the want of safeguards. If A. is authorised to make a bridge with parapets, but makes it without them, does the offence consist in the construction of the unsecured bridge, or in the neglect to secure iti But, if the distinction were always easily discoverable, why should a corporation be liable for the one species of offence and not for the other? The startling incongruity of allowing the exemption is one strong argument against it. The law is often entangled in technical embarrassments ; but there is none here. It is as easy to charge one person, or a body corporate, with erecting a bar across a public road as with the non-repair of it ; and they may as well be compelled to pay a fine for the act as for the omission. Some dicta occur in old cases : " A' corporation cannot be guUty of treason or of felony." It might be added "of perjury, or of offences against the person." The Court of Common Pleas lately held that a corporation might be sued in trespass' ; but nobody has sought to fix them with acts of immorality. These plainly derive their character froiu the corrupted mind of the person committing them, and are viola- • tions of the social duties that belong to men and subjects. A corpora- tion, which, as such, has no such duties, cannot be guilty in these cases : but it may be guilty as a body corporate of commanding acts to be done to the nuisance of the community at large. The late case of Begina v. Birmingham and Gloucester Railway Company' was corifined to the state of things then before the Court, which amounted to nonfeasance only ; but was by no means intended to deny the liability of a corporation for a misfeasance. We are told that this remedy is not required ; because the indi- viduals who concur in voting the order or in executing the work, may be made answerable for it by criminal proceedings. Of this there is no doubt. But the public knows nothing of the former ; and the latter, if they can be identified, are commonly persons of the lowest rank, wholly 1 Maund v. The Monmouthshire Canal Company, 4 M, and G. 452. 2 3 Q. B. 223. SECT. II.J TJie Queen v. North of England Railway Comp. 73 incompetent to make any reparation for the injury. There can be no effectual means for deterring from an oppressive exercise of power for the purpose of gain, except the remedy by an indictment against those who truly commit it, that is, the corporation, acting by its majority. And there is no principle which places them beyond the reach of the law for such proceedings. The verdict for the Crown, therefore, on the first four counts, will remain undisturbed. SECTION III. MODES OF PARTICIPATION IN A CRIME. [Principals in first and second degree.] REGINA V. GRIFFITH. Shropshire Assizes. 1553. Plowden 97. At the Shropshire Assizes, held in July, in the first year of the reign of Queen Mary, before Sir T. Bromley, L.C.J., and divers other justices of gaol delivery, divers persons of the countj^ of Montgomery were indicted for killing Oliver David ap Hoel Vaughan, at Berriew, in the said count}' of Montgomery, of malice prepense ; viz. some for giving the wounds whereof he died, and Griffith ap David ap John and others for that they were present, aiding, comforting and abetting the others to commit the said murder. And they who gave the wounds to the said Oliver, and killed him, had fled and escaped ; and Griffith ap David ap John and the rest were brought to the bar. And whether they should be arraigned or no was a doubt, and was moved to the other Justices by Bromley, L.C.J. For he said to them that, although they who were present and abetting were principals, as well as . they who struck the man and killed him, yet they are principals in only the second degree ; in respect that the others, who struck the said Oliver and killed him, are principals in the first degree by reason of the act of killing him. These others, who abetted them and were present, are also principals ; but in the second degree only, and in respect of the first act. For if the others did not kill the man, then if the said Griffith and the rest, who were abettors and present, should be now arraigned, and it should happen that they were acquitted, as it might be, I would know your opinions what should be done ? 74 Select Cases on Criminal Law. [part i. And all the other Justices above mentioned, after advising thereof for two days, held clearly enough that they might proceed with the prisoners now at the bar, without any inconvenience arising from it. For they said that when many come to do an act, and one only does it, and the others are present abetting him or ready to aid him in the fact, they are principals to all intents as much as he that does the fact. For the presence of the others is a terror to him that is assaulted, so that he dare not defend himself. For if a man sees his enemy and twenty of his servants coming to assault him, and they all draw their swords and surround him, and only one strikes him so that he dies thereof, now the others shall with good reason be adjudged as great offenders as he that struck him. For if they had not been present, he might probably have defended himself and so have escaped. But the number of the others being present and ready to strike him also, shall be adjudged a great terror to him, so as to make him lofee his courage and despair of defending himself ; and by this means they are the occasion of his death. And then inasmuch as both together, viz. the wounds and the presence of the others, who gave no wounds at all, are adjudged the cause of his death, it follows that all of them, viz. those that strike and the rest that are present, are in equal degree ; and each partakes of the deed of the other. For which reasons it seemed to them that the prisoners now present might be arraigned. And afterwards Bromley and all the Court agreed to it. And therefore they were arraigned ; and pleaded, not guilty. And note (reader) that a case in 40 Ass. proves that the law anciently was that those who were present and abetting were not principals, but accessories ; as the Lord Bromley said before. For the book is, that four were appealed as principals, and the others of Presence, Force and Aid. But of late time the law has been held con- trary in this point ; for now they are taken to be principals by all the sages of the law. [Principals in first and second degree^ REGINA V. SWINDALL AND OSBORNE. Stafford Assizes. 1846. 2 Carrington and Kirwan 230. The prisoners were indicted for the manslaughter of one James Durose. The second count of the indictment charged the prisoners with inciting each other to drive their carts and horses at a furious SECT. III.] Regina v. Swindall and Osborne. 75 and dangerous rate along a public road, and with driving their carts and horses over the deceased at such furious and dangerous rate, and thereby killing him. The third count charged Swindall with driving his cart over the deceased, and Osborne with being present, aiding and assisting. The fourth count charged Osborne with driving his cart over the deceased, and Swindall with being present, aiding and assisting. Upon the evidence, it appeared that the prisoners were each driving a cart and horse, on the evening of the 12th of August, 1845. The first time they were seen that evening was at Draycott toll-gate, two miles and a half from the place where the deceased was run over. Swindall there paid the toll, not only for that night, but also for having passed with Osborne through the same gate a day or two before. They then appeared to be intoxicated. The next place at which they were seen was Tean Bridge, over which they passed at a gallop, the one cart close behind the other. A person there told them to mind their driving : this was 990 yards from the place where the deceased was killed. The next place where they were seen was forty-seven yards beyond the place where the deceased was killed. The carts were then going at a quick trot, one closely following the other. At a turnpike gate a quarter of a mile from the place where the deceased was killed, Swindall, who appeared all along to have been driving the first cart, told the toll-gate keeper, "We have driven over an old man" ; and desired him to bring a light and look at the name on the cart ; on which Osborne pushed on his cart, and told Swindall to " hold his bother," and they then started off at a quick pace. They were subsequently seen at two other places, at one of which Swindall said he had sold his concern to Osborne. It appeared that the carts were loaded with pots from the potteries. The surgeon proved that the deceased had a mark upon his body which would correspond with the wheel of a cart, and also several other bruises ; and, although he could not say that both carts had passed over his body, it was possible that both might have done so. Greaves, in opening the case to the jury, submitted that it was perfectly immaterial in point of law, whether one or both carts had passed over the deceased. The prisoners were in company, and had concurred in jointly driving furiously along the road ; that that Was an unlawful act, and, as both had joined in it, each was responsible for the consequences, though they might arise from the act of the other. It was clear that they were either partners, master and servant, or at all events companions. If they had been in the same cart, one holding thereins, the other the whip, it could not be doubted that they would 76 Select Oases on Criminal Law. [part i. be both liable for the consequences ; and in etfect the case was the same, for each was driving his own horse at a furious pace, and encouraging the other to do the like. At the close of the evidence for the prosecution, Allen, Serjt., for the prisoners, submitted that the evidence only proved that one of the prisoners had run over the deceased, and that the other was entitled to be acquitted. Pollock, C. B. I think that that is not so. I think that Mr Greaves is right in his law. If two persons are in this way inciting each other to do an unlawful act, and one of them runs over a man, whether he be the first or the last he is equally liable. The person who runs over the man would be a principal in the first degree, and the other a principal in the second degree. Allen, Serjt. The prosecutor, at all events, is bound to elect upon which count he will proceed. Pollock, C.B. That is not so. I very well recollect that in Regina v. Goode there were many modes of death specified, and that it was also alleged that the deceased was killed by certain means to the jurors unknown. When there is no evidence applicable to a particular count, that count must be abandoned; but if there is evidence to support a count, it must be submitted to the jury. In this case the evidence goes to support all the counts. Allen, Serjt., addressed the jury for the prisoners. Pollock, C.B. (in summing up). The prisoners are charged with contributing to the death of the deceased, by their negligence and improper conduct. If they did so, it matters not whether he was deaf, or drunk, or negligent, or in part contributed to his own death ; for in this consists a great distinction between civil and criminal proceedings. If two coaches run against each other, and the drivers of both are to blame, neither of them has any remedy against the other for damages. So, in order that one ship-owner may recover against another for any damage done, he must be free from blame : he cannot recover from the other if he has contributed to his own injury, how- ever slight the contribution may be. But in the case of loss of life, the law takes a totally different view — the converse of the proposition is true. For there each party is responsible for any blame that may ensue", however large the share may be; and so highly does the law value human life, that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person. Generally, it may be laid down that, where one by his negligence has contributed to the death of another, he is responsible; therefore, you are to say, by your verdict, whether you SECT. III.] Regina v. Swindall and Osborne. 77 are of opinion that the deceased came to his death in consequence of the negligence of one or both of the prisoners. A distinction has been taken between the prisoners : it is said that the one who went first is responsible, but that the second is not. If it is necessary that both should have run over the deceased, the case is not without evidence that both did so. But it appears to me that the law as stated by Mr Greaves is perfectly correct. Where two coaches, totally inde- pendent of each other, are proceeding in the ordinary way along a road, one after the other, and the driver of the first is guilty of negligence, the driver of the second, who had not the same means of pulling up, may not be responsible. But when two persons are driving together, encouraging each other to drive at a dangerous pace, then, whether the injury is done by the one driving the first or the second carriage, I am of opinion that in point of law the other shares the guilt. Verdict, Guilty. [Principals in first and second degree.^ REX V. WILLIAM MASTIN AND JOHN MASTIN. Gloucester Assizes. 1834. 6 Caerington and Payne 396. The first count of the indictment charged that the prisoner, William Mastin, rode against the horse of John Seeker, the deceased, whereby he was thrown to the ground and killed ; and it then went on to charge John Mastin as a principal in the second degree. There was also a count charging that the prisoners were racing on the highway, and that the horse of the deceased thereby became frightened, and threw him. It appeared that, on the evening of the 14th of September, the prisoners, who were brothers, were on horseback, and were riding at a very rapid pace along a rather unfrequented highway, leading from Burford to Widford, and that the deceased was also on horseback. It further appeared that the deceased drew off as far from the middle of the road as the situation of the place would allow; and that John Mastin passed by him without any accident, but that the horse of William Mastin and the horse of the deceased came into collision, when both the deceased and William Mastin were thrown, and the deceased killed. 78 Select Cases on Criminal Law. [part i. Justice, for the prisoner John Mastin. I submit that the evidence does not affect my client at all. Two persons were riding, and at a rapid rate, and one goes by and does no mischief ; he certainly cannot be guilty of manslaughter, because another, who comes up a little afterwards, kills a person. The aiding which is charged in this in- dictment is the aiding in some act which caused the death of the deceased. Curwood, for the prosecution. As both- the prisoners were racing, the act of one is the act of both. Patteson, J. I think that if two are riding fast, and one of them goes by without doing any injury to any one, he is not answerable because the other, riding equally fast, rides against some one and kills him. His Lordship directed the acquittal of John Mastin. [Principal or Accessory before the fact.! THE QUEEN v. MANLEY. Somerset Assizes. 1844. 1 Cox 104 Indictment for larceny. The facts, as proved by the prosecution, were, that the prisoner was an apprentice of the prosecutor : that he had induced the son of the prosecutor, a child of the age of nine years, to take money from his father's till, and give to him. On cross- examination, it further appeared that the child had done the like for other boys. Cox, for the prisoner, submitted that the evidence did not sustain the indictment. The prisoner was charged with stealing money as principal, — the evidence showed him to be either an accessory or a receiver. If an offence be committed through the medium of an innocent agent, the employer, though absent when the act was done, is answerable as a principal. (Bex v. Giles, 1 Moody, C. C. 166 ; Heg. v. Michael, 2 Moody, C. C. 120; 9 C. and P. 356.) But if the instrument be aware of the consequences of his act, he is the principal in the first degree ; and the employer, if he be absent when the fact is committed, is an accessory before the fact. {Eex v. Stewart, R. and R. 363.) In this case, the evidence had shewn, beyond doubt, that the child was SECT. III.] The Queen v. Manley. 79 of the age of discretion, and fully aware of the consequences of his act. WiGHTMAN, J. What do you mean by an innocent agent, if this child be not one 1 Cox. An agent who, from age, defect of understanding, ignorance of the fact, or other cause, cannot be particeps criminis. WiGHTMAN, J. But though an act done through the medium of an innocent agent makes the prisoner a principal, how do you shew that he is not a principal where the act is done through the medium of a responsible agent? Cox. Because, if the agent be responsible, he becomes the principal; and to constitute a principal, he must be the actor or actual perpetrator of the fact, or cognizant of the crime, and near enough to render assistance. Though there be a previous concerted plan, those not present or near enough to aid at the time when the offence is com- mitted are not principals, but accessories before the fact. WiGHTMAN, J. It is a question for the jury if the child was an innocent agent. WiGHTMAN, J. (to the jury). Apart from the consideration of the guilt or innocence of the prisoner generally, if you believe the story told by the child, you will have to determine whether that child was an innocent agent in this transaction ; that is, whether he knew that he was doing wrong, or was acting altogether unconscious^ of guilt and entirely at the dictation of the prisoner ; for if you should be of opinion that he was not an innocent agent, you cannot find the prisoner guilty as a principal under this indictment. Verdict, Not guilty. [Editor's Note. A confederate, by being present at the commission of the offence, ceases to be an accessory before the fact, and becomes a principal. See Bex v. Brovm. 14 Cox 144.] [^Principal or Accessory before the factj] ANONYMOUS. King's Bench. 1633. Kelyng 52. Memorandum. That my brother Twisden shewed me a report which he had of a charge given by Justice Jones to the grand jury at 80 Select Cases on Criminal Law. [part i. the King's Bench bar in Michaelmas Term 9 Car. I. In which he said, that... if one drinks poison by the provocation or persuasion of another, and dieth of it, this is murder in the person that persuaded it. And he took this difference : If A. give poison to J. S. to give to J. D. ; and J. S., knowing it to be poison, give it to J. D., who taketh it in the absence of J. S. and dieth of it, in this case J. S. who gave it to J. D. is a principal. And A. who gave the poison to J. S. and was absent when it was taken is but accessory before the fact. But if A. buyeth poison for J. S., and J. S. in the absence of A. taketh it, and dieth of it ; in this case A. though he be absent, yet he is principal. So it is if A. giveth poison to B. to give unto C. ; and B., not knowirig it to be poison but believing it to be a good medicine, giveth it to C, who dieth of it. In this case, A. who is absent is principal ; or else a man should be murdered and there should be no principal. For B. who knew nothing of the poison, is in no fault, though he gave it to C. So if A. puts a sword into the hand of a madman, and bids him kill B. with it ; and then A. goeth away, and the madman kills B. with the sword as A. commanded him, this is murder in A. though absent, and he is principal. For it is no crime in the madman who did the fact ; by reason of his madness. And he said that this case was lately before himself and Baron Trevor at the Assizes at Hereford. A woman, after she had two daughters by her husband, eloped from him and lived with another man. And afterwards one of her daughters came to her; and she asked her "How doth j'our father?" To which her daughter answered that he had a cold ; to which his wife replied, " Here is a good powder for him, give it him in his posset." And on this, the daughter carried home the powder, and told all this that her mother had said to her, to her otlier sister ; who in her absence gave the powder to her father in his posset, of which he died. And he said that, upon conference with all the judges, it was resolved that the wife was principal in the murder ; and also the man with whom she ran away, he being proved to be advising in the poison. But the two daughters were in no fault, they both being ignorant of the poison. And accordingly the man was hanged and the mother burnt. SECT. III.] Eex V. Satmders and Archer. 81 \Prineipal or Accessory. Innocent agentJ] REX V. SAUNDERS AND ARCHER. Foster's Crown Law, 371. Saunders with intention to destroy his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it to her to eat. She, having eaten a small part of it, gave the remainder to their child. Saunders at this dreadful moment made a faint attempt to have saved the child ; but, conscious of the horrid purpose of his own heart, and unwilling to make his wife a witness of it, desisted ; and stood by and saw the infant he dearly loved eat the poison, of which it soon after- wards died. It was ruled, without much difficulty, that Saunders was guilty of the murder of the child upon the reasons already given. With regard to Archer, it was agreed by the judges upon conference that he was not accessory to this murder, it being an offence he neither advised nor assented to. The judges however did not think it advisable to deliver him in the ordinary course of justice by judgment of acquittal : but, for example's sake, they kept him in prison by frequent reprieves from session to session, till he had procured a pardon from the Crown ; a measure prudence will often suggest in cases of a doubtful or delicate nature. [Principal or Accessory.^ THE QUEEN v. JAMES. Crown Case Reserved. 1890. L.R. 24 Q.B.D. 439. Case stated by Stephen, J. On November 27, 1889, Nathan James was convicted at Gloucester for stealing 'a post-letter, the property of the Postmaster-General, from Edward Hopkins James, an officer of the Post Office, under the follow- ing circumstances. Nathan James was a servant of Messrs Burlingham & Co., and it was his duty to take orders and receive money on their behalf. Edward Hopkins James said, " The prisoner said to me, 'Will you retain certain letters that are coming through the post from Messrs Burlingham; as they are accounts that have been paid in to me, 6 82 Select Cases on Oriminal Law. [part i. and I don't want people to have them after they have paid their account V I said I thought it was wrong; and he afterwards said to me if anyone was to suffer he would, not me." In consequence E. H. James gave Shaw a good many of the letters in question instead of delivering them to the persons to whom they were addressed. The learned Judge directed the jury that if they believed this evidence it proved that both Nathan James and B. H. James were guilty of theft. If this direction was right, the conviction was to be affirmed ; if wrong, it was to be quashed. Lord Coleridge, C.J. I can entertain no doubt in this case. Either the prisoner was a joint thief with the postman from whom he obtained the letter, or he was an accessory before the fact, in which case, by 24 and 25 Vict. c. 94, s. 1, he was liable to be convicted in all respects as if he were a principal felon. In either case, therefore, he was rightly convicted. Pollock, B., concurred. Hawkins, J. The prisoner was a thief, either as principal felon at common law, or as accessory before the fact by statute, 24 and 25 Vict, c. 94, s. 1. In either case he was guilty. Grantham and Charles, JJ., concurred. Conviction affirmed. [Accessory after the/act.'\ REGINA V. CHAPPLE AND OTHERS. Central Criminal Court. 1840. 9 Careington and Payne 355. The indictment charged Thomas Chappie and Charles King with breaking and entering the dwelling of John Porter, on the 7th of September, at St Giles's in the Fields, and stealing therein fourteen silver spoons and various articles, the property of the said John Porter. It also charged Charles Chappie, Eliza Plant, Ann King, Henry Cox, and Sophia Cox, with feloniously receiving, harbouring, comforting, assisting, and maintaining the said Thomas Chappie and Charles King, well knowing that they had committed the felony. It appeared that the various prisoners who were charged with the offence of harbouring the felons, had been found in possession of various sums of money derived from the disposal of the property stolen • but it SECT. III.] Regina v. Chappie and Others. 83 did not appear, although they were in frequent communication with the persons charged with the felony, that they had received any of the stolen property itself, or had done any act to assist the felons personally. At the close of the case for the prosecution, Law, Recorder, intimated an opinion that the offence charged, so far as Charles Chappie and the others not indicted for the stealing were concerned, was not made out by the evidence, as there was no act shewn to have been done by them to assist the felons personally. He referred to a case in which it had been held that writing letters, to intimidate the witnesses and prevent them from coming forward to give evidence, was not a harbouring and assisting of the felon. He then went iiito the adjoining Court for the purpose of consulting on the subject with Mr Justice Littledale and Mr Baron Alderson; and on his return said, " I have mentioned the case to the learned Judges as shortly as I could, so as not to cause an interruption of the public business, and the answer was what I expected, viz. that in their opinion the proof amounts to evidence of an imperfect receiving, and not to the offence charged in the indictment." Verdict — Thomas Chappie and Charles King guilty of breaking and entering, (fee, and the other prisoners not guilty. SECTION IV. INCHOATE CRIMES. \_Incite'nientsJ\ THE KING •;;. HIGGINS. King's Bench. 1801. 2 Bast 5. The defendant was indicted for a misdemeanor at the Quarter Sessions for the county of Lancaster, and was convicted on the second count of the indictment, charging, " That he on, &c. at, fGE 481. The defendant came to town in a chaise; and before he got out of it, he fired off his pistols, which by accident killed a woman. King, C.J., ruled it to be but manslaughter. SECT. II.] The State v. Hardie. 123 \FirearmsJ\ THE STATE v. HARDIE. Supreme Court of Iowa. 1878. 10 Runnells 647. Indictment for manslaughter of Sarah Sutfen. The evidence shewed that the deceased, whilst calling at the house of a Mr Gantz, where the prisoner boarded, went into the yard to get a kitten. The defendant said he would frighten her with a revolver as she came back. The report of a revolver was soon afterwards heard, and the defendant immediately thereupon came to Mrs Gantz and said, " My God ! Come, Hannah, see what I have done." Mrs Sutfen was found in a dying condition, with a gunshot wound in her head. It was proved that the revolver had been found in the street, five years previously, with one chamber loaded. Mr Gantz had tried to fire this charge, and afterwards to hammer it out ; but in vain. It had ever .since been left about the house in the same condition ; and was regarded by all the family as quite harmless. The defendant was convicted of manslaughter. Against this he appealed; contending that there was no evidence of such carelessness as to render the act criminal, but that it was a homicide by misadventure. RoTHROCK, C.J. That the revolver was in fact a deadly weapon is conchisively shewn by the tragedy which occurred. Had it been un- loaded, though no homicide would have resulted, yet the defendant would have been justly censurable for a most reckless act in frightening a woman by pretending that he was about to discharge it at her. Human life is not to be sported with by the employment of firearms, even though the person using them may have good reason to believe that the weapon,... though loaded, will do no harm. When persons indulge in such reckless sport, they should be held liable for the conse- quences of their acts. Conviction affirmed. [See the Anonymous case, supra, p. 27.] 124 Select Cases on Criminal Law. [part ii. [Improper medical treatmfient ; whether by inattention, or hy ignorance.^ REGINA V. MARKUSS. Durham Assizes. 1864. 4 Foster and Pinlason 356. Joseph Levy Markuss was indicted for the manslaughter of Jane Sumby. The prisoner kept a shop in Sunderland, where he passed as a herb doctor The deceased woman was shewn to have died from inflamma- tion of the stomach, which the medical men who attended her attributed to an overdose of colchicum seeds, which she had taken by direction of the prisoner. ...Eighteen grains would be fatal, and the overdose ad- ministered contained eighty grains. WiLLES, J., said that every person who dealt with the health of others was dealing with their lives ; and every person who so dealt was bound to use reasonable care, and not to be grossly negligent. Gross negligence might be of two kinds. In one, a, man, for instance, went hunting and neglected his patient, who died in consequence. Another sort of gross negligence consisted in rashness ; as where a person was not sufficiently skilled in dealing with dangerous medicines which should be carefully used, and was ignorant of their properties or of how to administer a proper dose. A person who with ignorant rash- ness, and without skill in his profession, used such a dangerous medicine, acted with gross negligence. It was not, however, every slip that a man might make that would render him liable to a criminal investigation. It must be a substantial thing. If a man knew that he was using medicines beyond his knowledge, and was meddling with things above his reach, that was culpable rashness. Negligence might consist in using medicines in the use of which care was required, and of the properties of which the person using them was ignorant. A person who so took a leap in the dark in the administration of medicines was guilty of gross negligence. If a man were wounded, and another applied to his wound sulphuric acid, or something else which was of a dangerous character and ought not to be applied, and which led to fatal results, then the person who applied this remedy would be answerable ; and not the person who inflicted the wound, because a new cause had supervened. But if the person who dressed the wound applied a proper remedy, then if a fatal result ensued he who inflicted the wound remained liable. He left it to the jury to say whether on the evidence the deceased had died from natural causes, or from the supervening cause of the medicine prescribed for her by the prisoner, he being an irregular and apparently unskilled practitioner. SECT. II.] Regina v. Marhuss. 125 If from the latter cause, then had the prisoner prescribed this medicine (which was the cause of death) rashly, in the sense that he had explained "i Verdict, Not guilty. [Negligence in doing a lawful act which is dangerous.] REX V. HULL. Old Bailey. 1664. Kelyng 40. John Hull was indicted for the murder of Henry Cambridge. The case was, that there were several workmen about building of a house by the horse-ferry ; which house stood about 30 feet from any highway of common passage. Hull, being a master-workman, was sent by his. master (about evening, when the master-workmen had given over work,, and when the labourers were putting up their tools) to bring from his house a piece of timber which lay two stories high. He went up for that piece of timber ; and before he threw it down, he cried out aloud,. "Stand clear," and was heard by the labourers. All of them went from the danger but only Cambridge ; and the piece of timber fell upon him and killed him. And my Lord Chief Justice Hyde held this to be manslaughter. For he said he should have let it down by a rope ; or else, at his peril, be sure that nobody is there. But my brother Wylde and myself (Kelyng, C.J.) held it to be misadventure ; he doing nothing but what is usual with workmen to do, and (before he did it) crying out aloud, " Stand clear," and so giving notice if there were any near they might avoid it. And we put this case : — a man lopping a tree, when the arms of the tree were ready to fall, calls out to them below, " Take heed " ; and then the arms of the tree fall and kill a man, this is mis- adventure. And we shewed him Poidton de pace 120, where the case is put, and the book cited, and held to be misadventure. And we said this case in question is much stronger than the case where one throws a stone or shoots an arrow over a wall or house, with which one is slain ; which, in Keilwey 108 and 136, is said to be misadventure. But we did all hold that there was a great difference 'twixt the case in question (the house from which the timber was thrown standing thirty feet from the highway or common foot-path) and the doing the same ] 26 Select Oases on Criminal Law. [part ii. act in the streets of London. For we all agreed that in London, if one be a cleansing of a gutter, and call out to stand aside, and then throw- down rubbish or a piece of timber, by which a man is killed, this is manslaughter^. Being in London, there is a continual concourse of people passing up and down the streets, and new passengers who did not hear him call out; and therefore... if anyone be killed it is man- slaughter. Because, in common presumption, his intention was to do mischief, when he casts ot shoots anything, which may kill, among a multitude of people. But in case of a house standing in a country- town, where there is no such frequency of passengers, if a man call out there to " Stand aside, and take heed," and then cast down the filth of a gutter, my brother Wylde and I held this a far differing case from doing the same thing in London. And because my Lord Hyde differed in the principal case, it was found specially ; but I take the law to be clear that it is but misadventure. \Negligence as regards dangerous animals.^ BEGIN A V. DANT. Crown Case Beseeved. 1865. Leigh and Cave 567. The following case was stated by Montague Smith, J. The prisoner was tried before me for feloniously killing and slaying Mary Ann Papworth. The deceased was a child about eight years old, and was killed by a kick from a horse belonging to the prisoner. The horse which caused the death of the child had been in the possession of the prisoner about four years. There was evidence that it was a very vicious and dangerous animal ; that it had kicked and injured several persons ; that some of these instances had been brought to the knowledge of the prisoner ; and that he otherwise knew the pro- pensities of the horse. There is a large common adjoining the town of Cambridge, between Jesus College and the river, called Midsummer Common, on which the ratepayers in the borough of Cambridge were accustomed to depasture • [Editor's Note. Had the Londonei" not taken the precaution of oalling out to the passers-by, his offence would amount to murder, according to Coke (3 lust. 57). Of. Foster, 262.] SECT. 11. J Begina v, Dant. 127 their horses. Through this common there are defined public foot-paths, a yard wide or more, kept and gravelled by the Municipal Corporation of Cambridge. Two of these paths converge about twelve yards from a bridge over the river, and, from the point where they meet, form a broad pathway to the river ; but the boundaries of the public foot-path from the said point to the river are ill-defined. These paths are all unfenced and open to the rest of the common. It was proved that the public have a right to use these foot-paths ; but it was not proved that the public had a right to traverse the other parts of the common, although they often did traverse it. The prisoner claimed a right, as a ratepayer of the borough of Cambridge, to turn out his horses to depasture on this common ; and it was not disputed by the Counsel for the prosecution that he had this right. It appeared that the deceased, with some other children, was on the common ; and, when she was either on or very near to the broad pathway above described, the vicious horse of the prisoner, which had been turned out loose on the common by him, and which was then on the common near the broad path, kicked at the deceased with his heels, struck her on the head, and killed her. I left to the jury the question whether the death of the child was occasioned by the culpable negligence of the prisoner ; and I told them they might find culpable negligence, if the evidence satisfied them that the horse was so vicious and accustomed to kick mankind as to be dangerous, and that the prisoner knew that it was so, and with that knowledge turned it out loose on the common, through which to his knowledge there were open and unenclosed paths on which the public had a right to pass and were accustomed to be. I also asked the jury to find, as a separate question, whether the deceased, at the time she was kicked by the horse, was on the foot-path or beyond it. The jury found the prisoner guilty of having caused the death of the child by his culpable negligence, but answered the last question by saying that the evidence did not satisfy them one way or the other — • whether the child, at ttie time she was kicked, was on the pathway or beyond it. . . . Naylor (for the prisoner). For the purposes of this argument it must be taken that the child was ofT the path ; and, if that was so, the conviction cannot stand. A man who puts a vicious horse into his own close would not be guilty of manslaughter if it killed a trespasser. So here, the child, being off the path, was a trespasser ; and, if there was any neglect of duty, it was on the part of the corporation, the owners of the field, in neglecting to fence oJGf the path. The prisoner 128 Select Cases on Crimwal Law. [part ii. could not erect a fence, for he had no right in the field except that of putting his cattle on it. Montague Smith, J. The path was unfenced ; and he knew it to be so. Blackburn, J. His negligence consisted in turning a vicious horse into a place where it might reasonably be expected that people would come. Naylor. The negligence was rather that of the parent in suffering the child to go on a common where the paths were unfenced. If a man, having a field, digs a pit in it, and another, wandering from the path, falls into the pit, the owner of the field is not liable. Blackburn, J. In Barnes v. Ward' it was held that an area dug so near to a public way as to be dangerous to the public unless fenced was a nuisance. Is not the letting a vicious horse come near a public way as bad as digging a pit near it 1 Naylor. That might have been so, if the prisoner had been the owner of the field, and had had the power of fencing the path. Blackburn, J. Not having that power, was it not his duty to clog or blind the horse ? Melloe, J. The injury arose from turning the horse in. Is a man justified in turning a vicious horse into a field when there is an unfenced path ? Would a commoner be justified in turning a bull he knew to be mischievous on to an unfenced common ? Blackburn, J. Surely it is his duty not to do anything in the use of his property which would be likely to endanger persons using the path. Erle, C.J. The corporation were not bound to fence the path. If the boon of walking over a man's land is given to the public, the public must take it as it is given. Naylor. The child contributed to its death by its own negligence. Blackburn, J. I have never heard that, upon an indictment for manslaughter, the accused is entitled to be acquitted because the person who lost his life was in someway to blame. Mellor, J. The only point reserved is whether the prisoner can be pronounced guilty of culpable negligence when the jury cannot say whether the child was on or off the path. Blackburn, J. And whether the fact of the child's being on or off the path is material. Naylor. If the child had been on the path, the accident might not have happened. Blackburn, J. At any rate the child was close to the path ; and 1 9 C. B. 392. SECT. II.] Regina v. Dant. 129 in Barnes v. Ward ' the pit was not quite close to the footway, so that the deceased must have gone out of the way before she fell into the pit. Naylor. In Hardcastle v. The South Yorkshire Railway and River Dun Company' it was held that an excavation near to a public high- way was not a nuisance unless it, substantially, adjoined it. Mellob, J. Throwing stones off the top of a house by which persons passing below are killed is manslaughter or not, according as persons may or may not be expected to pass. As to the point that the child was guilty of contributory negligence ; in Regina v. StvindalP Pollock, C. B., held that, where a man kills another by furious driving and running over him, it is no ground of defence that the death was partly caused by the negligence of the deceased himself. Blackburn, J. The other day a man was very properly convicted of murder, because he aided and abetted another in committing suicide ; yet he could not have been sued for so doing by the man who killed himself. In Hammack v. White* Willes, J., expresses an opinion that the question of negligence is not the same in an action as in an indictment for manslaughter. Mellor, J. Both Barnes v. Ward^ and Hardcastle v. The South Yorkshire Railway ° were considered in Binks v. The South Yorkshire Railway^; and the Court there adopted the distinction laid down in the second of those cases. Naylor. In Hounsell v. Smyth' it was held that an owner of waste land, who had opened a quarry in his land near to and between two public highways leading over the waste, was not liable to an action at the suit of a man who had fallen into the quarry in crossing the waste by night to get from one road into the other. Mellor, J. Is there not a distinction between turning out cattle, which may roam about, and digging a pit, which is fixed and only dangerous to those who go out of their way to it ? Naylor. In this case the child had gone out of its way. Markhy, for the Crown, was not called upon. Brle, C.J. I am of opinion that this conviction should be affirmed. The defendant turned a dangerous animal on to a common where there was a public footpath. That has been found by the jury to be culpable negligence; and the child's death was caused by it. Ordinarily speaking, these are all the requisites of manslaughter. It is contended, however, that no offence was committed, because, as we must take it, the child was not on the path; the jury having found 1 9 C. B. 392. 2 4 H. and N. 67. ' 2 Car. and Kir. 230. « 31 L. J. C. P. 129, 131. 5 9 C. B. 392. « 4 H. and N. 67. 7 32L. J.Q.B. 26. e 29 L. J.C.P. 203. 9 130 Select Cases on Criminal Law. [part ii. that it was very near, but that they could not say whether it was on or off. In my opinion, the defendant is responsible for having brought so great a danger on persons exercising their right to cross the common ; and it is not a gfound of acquittal that the child had strayed from the path. Ba/rnes v. Ward ' shews that a man is responsible for making an excavation adjoining a highway, so as to render the way unsafe to persons using it with ordinary care. In that case the excavation was not on the highway ; and the plaintiff's wife had acci- dentally deviated on a dark night. The principle of that case applies to this. I am of opinion that those who dedicate a road are not under any obligation to fence it. When a right of way is granted, it must be taken in the state in which it is granted ; but persons using it are nevertheless to be protected from such danger as that in this case. My judgment proceeds on the fact that the child was near the path ; since the cases shew that persons trespassing a long way from the path must take the chance of what may happen to them in consequence of so doing, and cannot maintain any action against the owner of the land for any damage they sustain thereby. Yet I do not say that, because a man is not liable to an action in such a case, he is not liable criminally. It is not necessary at present to embark on that question. [The four other Judges delivered similar judgments.] \I)rimng.^ [Negligence in driving.^ EEX ■;;. KNIGHT. Lancaster Assizes. 1828. 1 Lewin 168. Prisoner was indicted for manslaughter. The evidence was that, being employed to drive a cart, he sat in the inside instead of attending at the horse's head^. While he was sitting there, the cart went over a child who was gathering up flowers on the road. Baylby, J. The prisoner, by being in the cart, instead of at the horse's head or by its side, was guilty of negligence. Death having been caused by such negligence, he is guilty of manslaughter. [In a similar case before HuUock, B., at York Assizes in 1829 a similar judgment was delivered.] [See also Reg. v. Dalloway, infra.] 1 9 C. B. 392. 2 [Editok's Note. The cart evidently was one without driving-reins.] SECT. II.] Regina v. Bradshaw. 1.51 [Negligence in playing a lawful game.] REGINA V. BRADSHAW. Leicester Assizes. 1878. 14 Cox 83 William Bradshaw was indicted for the manslaughter of Herbert Dockerty at Ashby-de-la-Zouch. The deceased met with the injury which caused his death on the occasion of a football match played between the football clubs 6i Ashby-de-la-Zouch and Coalville, in which the deceased was a player on the Ashby side, and the prisoner was a player on the Coalville side. The game was played according to the "Association Rules." After the game had proceeded about a quarter of an hour, the deceased was "dribbling" the ball along the side of the ground in the direction of the Coalville goal, when he was met by the prisoner, who was running towards him to get the ball from him or prevent its further progress. Both players were running at considerable speed. On approaching each other, the deceased kicked the ball beyond the prisoner ; and the prisoner, by way of " charging" the deceased, jumped in the air and struck him with his knee in the stomach. The two met, not directly but at an angle, and both fell. The prisoner got up unhurt, but the deceased rose with difficulty and was led from the ground. He died next day, the cause of death being a rupture of the intestines. Witnesses from both teams were called whose evidence differed as to some particulars. Those most unfavourable to the prisoner alleged that the ball had been kicked by the deceased and had passed the prisoner before he charged ; that the prisoner had therefore no right to charge at the time he did ; that the charge was contrary to the rules and practice of the game, and made in an unfair manner, with the knees protruding. Those who were more favourable to the prisoner stated that the kick by the deceased and the charge by the prisoner were simultaneous ; and that the prisoner had therefore, according to the rules and practice of the game, a right to make the charge ; though these witnesses admitted that to charge by jumping with the knee protruding was unfair. One of the umpires of the game stated that in his opinion nothing unfair had been done. Bramwell, L.J., in summing up the case to the jury said, "The question for you to decide is whether the death of the deceased was caused by the unlawful act of the prisoner. There is no doubt that the prisoner's act caused the death ; and the question is whether that act was unlawful. No rules or practice of any game whatever can make that lawful which is unlawful by the law of the land ; and the law of the land says you shall not do that which is likely to cause the 9—2 132 Select Gases on Criminal Law. [paet ii. death of another. For instance, no persons can by agreement go out to fight with deadly weapons (doing by agreement what the law says shall not be done), and thus shelter themselves from the consequences of their acts. Therefore, in one way you need not concern yourselves with the rules of football. But, on the other hand, if a man is playing according to the rules and practice of the game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury. But, independent of the rules, if the prisoner intended to cause serious hurt to the deceased — or if he knew that, in charging as he did, he might produce serious injury and was indifferent and reckless as to whether he would produce serious injury or not — then the act would be unlawful. In either case he would be guilty of a criminal act and you must find him guilty. If you are of a contrary opinion you will acquit him." His Lordship carefully reviewed the evidence, stating that no doubt the game was, in any circumstances, a rough one ; but he was unwilling to decry the manly sports of this country, all of which were no doubt attended with more or less danger. Verdict, Not guilty. [Editor's Note. In the Bimilar case of Reg. 7. Moore, also tried at Leicester Assizes (Times, Feb. 16, 1898), for manslaughter in a football match, but by charging from behind, which is contrary to the rules of the game, Hawkins, J., would not allow those rules to be put in evidence by the Crown, and said the only question for the jury was whether the prisoner used illegal violence.] [Negligence by mere omission.^ WoECESTEESHiKE AssizES. 1850, 3 Careington and Kiewan 123. KEGINA V. SAMUEL LOWE. The prisoner was indicted for the manslaughter of Thomas Tibbitts. It appeared that he was an engineer, and that his duty was to manage a steam-engine employed for the purpose of drawing up miners from a coal-pit. When the skip containing the men arrived on a level with the pit's mouth, his duty was to stop the revolution of the windlass, so that the men might get out. He was the only man so employed on the premises. On the day in question he deserted his post, leaving the engine in charge of an ignorant boy, who, before the prisoner went away, declared himself to the prisoner to be utterly incompetent to manage such a steam-engine. The prisoner neglected this warning ; and threatened the boy, in case he refused to do as he was ordered. The boy superintended the raising of two skips from the pit with SECT. II.] Regina v. Samuel Lowe. 133 success. But on the arrival, at the pit's mouth, of a third, containing four men, he was unable to stop the engine; and the skip being drawn over the pulley, the deceased, who was one of the men, was thrown down into the shaft of the pit and killed on the spot. It appeared that the engine could not be stopped "in consequence of the slipper being too low,'' an error which it was proved that any competent engineer could have rectified, but which the boy in charge of the engine could not. Huddlesion^ for the prisoner, contended, that a mere omission or neglect of duty could not render a man guilty of manslaughter, and he cited the cases of Eex v. Green (7 C. and P. 156), and Eex v. Allen (7 C. and P. 153). Lord Campbell, G.J. I am clearly of opinion that a man may, by a neglect of [even an active] duty, render himself liable to be con- victed of manslaughter, or even of murder. \^But the omission must not be too remote a cause.] REGINA V. HILTON. Liverpool Assizes. 1838. 2 Lewin 214. The prisoner was indicted for manslaughter. It appeared that it was his duty to attend a steam-engine ; and that, on the occasion in question, he had stopped the engine, and gone away. During his absence, a person came to the spot, and put it in motion ; and, being unskilled, was not able to stop it again. It appeared, that in conse- quence of the engine being in motion, the deceased was killed. Aldeeson, B., stopped the case, observing, "The death was the consequence, not of the act of the prisoner, but of the person who set the engine in motion after the prisoner had gone away. It is necessary, in order to a conviction for manslaughter, that the negligent act which causes the death should be that of the party charged." [^Omission too remote.] REGINA V. REES. Centeal Ceiminal Court. 1886. Sessions Papers, civ. Frederick Samuel Rees was indicted for, and charged on the coroner's inquisition with, the manslaughter of George Hill. Erom Poland's opening of the case for the Crown, it appeared that the prisoner was a fourth-class fireman in the London Fire' Brigade, 134 Select Cases on Criminal Law. [part ii. having charge of a fire-escape ; on the occasion in question he was absent from his post when a fire occurred in which the deceased lost his life. The allegation was that this death was caused by the prisoner's culpable neglect of his duty. Bealey, for prisoner. There was no direct connection between the prisoner's neglect of duty and the cause of death. Hawkins, J., concurring in this view, Poland offered no evidence, and the prisoner was acquitted. [Prisoner's negligence, however gross, will not render him responsible for a death which his diligence would not have averted.^ THE QUEEN v. DALLOWAY. Stafford Assizes. 1847. 2 Cox 273. The prisoner was indicted for the manslaughter of one Henry Clarke, by reason of his negligence as driver of a cart. It appeared that the prisoner was standing up in a spring-cart, and having the conduct of it along a public thoroughfare. The cart was drawn by one horse. The reins were not in the hands of the prisoner, but loose on the horse's back. While the cart was so proceeding down the slope of a, hill, the horse trotting at the time, the deceased child, who was about three years of age, ran across the road before the horse, at the distance of a few yards ; and one of the wheels of the cart, knocking it down and passing over it, caused its death. It did not appear that the prisoner saw the child in the road before the accident. Spooner, for the prosecution, submitted that the prisoner, in consequence of his negligence in not using reins, was responsible for the death of the child. But Erle, J., in summing up to the jury, directed them that a party neglecting ordinary caution, and, by reason of that neglect, causing the death of another, is guilty of manslaughter ; that if the prisoner had reins, and by using the reins could have saved the child, he was guilty of manslaughter ; but that if they thought he could not have saved the child by pulling the reins, or otherwise by their assistance, they must acquit him. [Contrast Rex v. Knight, supra, p. 130.] SECT. II.J Regina v. Kew and Jackson. 135 [But if prisoner's negligence formed even a part of the proximate cause of death, it is no defence that there was contributory negligence on the deceased's own part.^ REGINA V. KEW AND JACKSON. Suffolk Assizes. 1872. 12 Cox 455. The prisoners were indicted for manslaughter. It appeared that on the 2nd of June the prisoner Jackson, who was in the employ of Mr Harris, a farmer, was instructed to take his master's horse and cart, and drive the prisoner Kew to the Bungay railway station. Being late for the train, Jackson drove at a furious rate, at full gallop ; and ran over a child going to school, and killed it. It was about two o'clock in the afternoon, and there were four or five little children, from five to seven years of age, going to school unattended by any adult. Metcalfe and Simms Reeve, for the prisoners, contended that there was contributory negligence on the part of the child running on the road ; and that Kew was not liable for the acts of another man's servant, he having no control over the horse, and not having selected either the horse or the driver. Byles, J., said : — Here the mother lets her child go out in the care of another child, only seven years of age. And the prisoner Kew is in the vehicle of another man, driven by another man's servant ; so not only was Jackson not his servant, but he did not even select him. It • has been contended that if there was contributory negligence on the children's part, then the defendants are not liable. No doubt con- tributory negligence would be an answer to an action. But who is the plaintiff here ? The Queen, as representing the nation ; and if they were all negligent together, I think their negligence would be no defence, even if they had been adults. If you are of opinion that the prisoners were driving at a dangerous pace, in a culpably negligent manner, then they are guilty. It is true that Kew was not actually driving ; but still a word from him might have prevented the accident. If necessary, I will reserve for the Court of Criminal Appeal the question of contributory negligence as a defence. The jury acquitted both prisoners. 136 Select Cases on Criminal Law. [part ii. SECTION III. HOMICIDES THAT ARE NOT CRIMES. \^Mere accident J\ THE QUEEN v. BRTICE. Central Criminal Court. 1847. 2 Cox 262. The prisoner was indicted for manslaughter, under the circum- stances detailed by one of the witnesses. He said the prisoner came into his master's shop; and pulled him, by the hair, off a cask where he was sitting, and shoved him to the door, and from the door back to the counter. That the prisoner then put his arm round his neck and spun him round, and they came together out of the shop ; the prisoner kept hold of the witness when they were outside, and kept spinning him round ; the latter broke away from him, and, in consequence and at the moment of his so doing, he (the prisoner) reeled out into the road and knocked against a woman who was passing and knocked her down. The prisoner was very drunk, and staggered as he walked. The woman so knocked down died shortly afterwards of the injuries she had received; and it was for having caused her death that the prisoner was indicted. Mr Justice Erle inquired of the witness (a young lad) whether he resisted the prisoner during the transaction. The lad answered that he did not ; he thought the prisoner was only playing with him, and was sure that it was intended as a joke throughout. Erle, J. (to the jury). I think, upon this evidence, you must acquit the prisoner. Where the death of one person is caused by the act of another, while the latter is in pursuit of any unlawful object, the person so killing is guilty of manslaughter, although he had no inten- tion whatever of injuring him who was the victim of his conduct. Here, however, there was nothing unlawful in what the prisoner did to this lad, and which led to the death of the woman. Had his treat- ment of the boy been against the will of the latter, the prisoner would have been committing an assault — an unlawful act — which would have rendered him amenable to the law for any consequences resulting from it. But as everything that was done was with the witness's consent, there was no assault, and consequently no illegality. It is, in the eye of the law, an accident, and nothing more. SECT, III.] Rex V. Martin. 137 [i/ere accident.'] REX V. MARTIN. Stafford Assizes. 1827. 3 Caeeington and Payne 211. Manslaughter. The indictment charged the prisoner with giving a quartern of gin to Joseph Sweet, a child of tender age, to wit, of the age of four years; which caused his death. The indictment averred the quantity of gin to be excessive for a child of that age. It appeared that the father of the deceased kept a public-house at Wolverhampton, and that the prisoner went there to drink, and having ordered a quartern of gin, he asked the child if he would have a drop ; and that, on his putting the glass to the child's mouth, with his left hand, as he held the child with his right, the child twisted the glass out of his hand, and immediately swallowed nearly the whole of the quartern of gin. This caused his death a few hours after. Vaughan, B. As it appears clearly that the drinking of the gin in this quantity was the act of the child, the prisoner must be acquitted. But if it had appeared that the prisoner had willingly given a child of this tender age a quartern of gin, out of a sort of brutal fun, and had thereby caused its death, I should most decidedly have held that to be manslaughter ; because I have no doubt that the causing the death of a child by giving it spirituous liquors, in a quantity quite unfit for its tender age, amounts, in point of law, to that ofience. Verdict, Not guilty. [Editok's Note. In Begina v. Packard and others (0. and M. 236) where a man of sixty died within two hours after being plied with spirits by the prisoners, Parke, B., said, "The simple fact of persons getting together to drink, or even of one pressing another to drink, is not an unlawful act, or, if death ensue, an offence that can be construed into manslaughter. And if what took place in the present instance was reaUy and solely for making merry, this will not be a case of manslaughter, though the act was attended with death But a verdict that the prisoners knew that the liquors were likely to cause the death of the deceased would make the offence approach to murder."] [Self-defence.] ANONYMOUS. X352. Lib. Ass. ann. 26, f. 123, pi 23. Note that in an indictment for felony the defendant put himself upon the country. And it was found that he was in his house; and the 138 Sdect Cases on Criminal Law, [part ii. man whom he killed and others came to his house in order to burn him, &o., and surrounded the house but did not succeed ; and he leapt forth (fee. and killed the other