Attempt

An attempt to commit a felony or misdemeanor is a mis- CHAP. I. demeanor: but an act is not indictable as such an attempt unless it is directly approximating to the commission of the to commit offence. (R. v. Egleton, Dears. C. C. 515.) It is difficult to a felony define an attempt to commit an offence. It may be described or a misas an act done or omitted with intent to commit an offence, demeanor. forming part of a series of acts or omissions which would have constituted the offence if such series of acts or omissions had not been interrupted, either by the voluntary determination of the offender not to complete the offence, or by some other cause. (See sect. 74 of Draft Code (a).) If a person purchases a jemmy for the purpose of committing a burglary this is not an attempt to commit a burglary.

In R. v. Collins, L. & C. 471, which, at first sight, seems a singular decision but was no doubt correctly decided, it was held that a person who put his hand into the pocket of another in order to steal, was not guilty of an attempt to steal, because it happened that the pocket was empty. (See 1 Russ. on Cri. 163.) According to this, if A., desiring to kill B., were to fire a pistol at a spot where he believed him to be, but he was, in fact, not there, this would not be indictable as an attempt to kill B. Or, if A., desiring to kill B., fires a shot at C., believing him to be B., but misses him, this is not an attempt to kill B., but an attempt to kill C. The soliciting and inciting a person to commit a felony is a misdemeanor, though no felony is in fact committed. (R. v. Gregory, 36 L. J. M. C. 60; L. R. 1 C. C. R. 77.)

Actus non

nisi mens

The maxim-actus non facit reum nisi mens sit rea-a maxim founded on natural justice is sometimes lost sight of facit reum by those more conversant with the procedure in civil actions sit rea. than in criminal cases. It is submitted that the general rule of law is that if a person bona fide believes in a state of facts which, if true, would render his act lawful and right, and had reasonable ground for such belief, he is in the same position as if the facts existed which he believed did exist. A criminal will or intention, without a criminal act, is not a crime-nor is an act a crime where the intention is to do that which is lawful, and there are reasonable grounds to suppose that it is so, and where it would be so if the facts were

(a) On the 17th August, 1878, a royal commission was issued for the purpose, amongst other things, of enquiring into and reporting on a certain Draft Code. The commissioners named in this commission made their report on the 12th of June, 1879,-in the appendix to which is a draft code, which in this work is referred to as the Draft Code, the commissioners being often referred to as the Criminal Code Commissioners.

PART I. as supposed. This, of course, does not interfere with the rule that ignorance of the law is no excuse. Again, this does not interfere with the rule that if a person intending to commit one criminal act commits another he is guilty of the other although he had no intention to commit it; thus if a man strikes with a dangerous weapon with intent to do grievous bodily harm and kills-this is murder; so if a man broke into a dwelling-house before 6 a.m. for the purpose of committing a felony therein he is guilty of burglary, although, misled by his watch being wrong, he believed at the time he broke into the house it was after 6. Nor would this prevent an act being a crime if the legislature expressly or impliedly enacted that it should be so whatever knowledge or intention a person might have.

The case of R. v. Prince, 44 L. J. M. C. 122, should be here referred to, which it is difficult to reconcile with the above maxim. By 24 & 25 Vict. c. 100, s. 55, whosoever shall unlawfully take any unmarried girl under the age of 16 years out of the possession and against the will of her father is guilty of a misdemeanor:—a man took out of the possession, and against the will of her father, a girl of the age of 14, who, however, looked much older than 16; and the jury found, as a fact, that before the man took her away she had told him she was 18, and that he bond fide believed such statement, and that such belief was reasonable :-Held, that he was guilty of the misdemeanor within this section, though he did not know that the girl was under the age of 16, and even believed that he knew she was over that age, BRETT, J., dissenting. Mr. Justice BRETT said, in this case, "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 offence at all. It may be true to say that the meaning of the word "unlawfully "is that the prohibited acts to be done "without justification or excuse." I, of course, agree that if there be a legal justification there can be no crime. But I come to the conclusion that a mistake of facts on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with Lord KENYON that "such is our law," and with COCKBURN, C. J., that "such is the foundation of all criminal procedure."

Judges have doubted whether it is a defence to an indict- CHAP. I. ment for bigamy that at the time of the second marriage the prisoner had a reasonable and honest belief that his wife was dead. It is submitted that the above maxim applies. (See 3 Russ. on Crimes, by Prentice, p. 265; but see R. v. Bennett, 14 Cox C. C. 45.)

a crime

A bare intent to commit a crime is not punishable by our Bare law-there must be an act done in order to constitute a intent to commit crime the maxim voluntas reputabatur pro facto does not apply. An act innocent in itself becomes a crime if coupled not with an unlawful and criminal intent. (R. v. Scofield, Cald. punish397; 1 Russ. on Crimes, 188, 190.)

able.

prosecutor

no defence.

There are many cases where it is no defence to prove that When what is complained of was done with the consent of the consent of prosecutor as a person cannot consent to a crime being committed. Thus it is no defence to an indictment for murder that the murdered man was put to death by his own desire; and it is no defence to an indictment for unlawfully and carnally knowing and abusing a girl under the age of twelve years that she consented thereto; and mutual consent to a prize fight does not make it less a breach of the peace or exonerate those engaged from punishment. But if the consent of the prosecutor prevents the act from being unlawful or a crime, proof of such consent is a defence, as it shows that no crime has, in fact, been committed; therefore, in answer to an indictment for rape, the accused may prove that the prosecutrix consented to what was done, as in order to constitute the crime of rape the carnal knowledge must be when the woman did not consent thereto. So, in general, on an indictment for an assault the accused may set up as a defence that what is complained of was done by the prosecutor's leave. (R. v. Roadley, 49 L. J. M. C. 88, where the prisoner was indicted for an indecent assault on a girl seven years of age.) By 43 & 44 Vict. c. 45 (The Criminal Law Amendment Act, 1880), s. 2, "it shall be no defence to a charge or indictment for an indecent assault on a young person under the age of thirteen, to prove that he or she consented to the act of indecency."

If

There is a difference between submission and consent. a person, not knowing what is about to be done to him or what is being done to him, makes no resistance, he does not consent to the act being done. Every consent involves a submission, but it by no means follows that a mere submission involves consent. (1 Russ. on Crimes, 876.) Yielding to violence from fear of death, or by duress, is not consent. (1 Russ. on Crimes, 859.) It is submitted that there is no

PART I. consent if submission or non-resistance is occasioned by fraud. (1 Russ. on Crimes, 960; see Latter v. Braddell, 50 L. J. Q. B. 166; Hegarty v. Shine, 14 Cox C. C. 145.) It would seem from the cases, however, that if a man has connection with a married woman by a fraud, which induces her to suppose that he is her husband, and she therefore consents to the connection, it is not a rape. (1 Russ. on Crimes, 861; sed query, see R. v. Young, 14 Cox C. C. 114.) On a trial for rape, WILLES, J., told the jury that if they were satisfied that the girl was in such a state of idiocy as to be incapable of expressing either consent or dissent, and that the prisoner had connection with her without her consent, they should find him guilty. (R. v. Page, 2 Cox C. C. 133.) A man who, by fraudulently and falsely pretending to give medical advice to a female patient, and in pursuance of such advice to perform a surgical operation upon her, procures her submission to his medical treatment of her, under colour of which he has carnal connection with her, she believing all the while that she was undergoing medical treatment, is guilty of a rape. (R. v. Flattery, 46 L. J. M. C. 130; 13 Cox C. C. 388.)

It is a general rule that infants under the age of discretion Infants. are not punishable by any criminal prosecution. (1 Hale, 27.) An infant under the age of seven years is, by presumption of law, doli incapax; against which presumption no averment can be received. Between the age of seven and fourteen years an infant is deemed primâ facie to be doli incapax; but this presumption may be rebutted. At the age of fourteen years an infant is presumed by law to be doli capax.

At p. 17 of the report of the Criminal Code Commissioners it is stated that the following section of the code (21) repeats the existing law :-"No one whose age exceeds seven and does not exceed fourteen years shall be convicted of any offence, unless it appear to the jury that at the time he committed the offence he had sufficient intelligence to know the nature and consequences of his conduct, and to appreciate that it was wrong.'

An infant under fourteen is presumed by law to be impotent and unable to commit a rape, and evidence is not . admissible to rebut this presumption. But he may, between seven and fourteen, if he be found to be doli capax, be a principal in the second degree if he aid and assist in the commission of a rape. (1 Hale, 639.) In some misdemeanors an infant is privileged by reason of his nonage if under 21 for instance, for a mere nonfeasance (Co. Litt. 357), unless it be for not doing a thing which he is bound to do by reason of his tenure, or the like, as the repair of a bridge. (R. v. Sutton, 3 A. & E. 597.)