PART II.

MATTERS OF JUSTIFICATION OR EXCUSE.

COMMON LAW RULES.

7. All rules and principles of the common law which render any circumstances a justification or excuse for any act, or a defence to any charge, shall remain in force and be applicable to any defence to a charge under this Act except in so far as they are hereby altered or are inconsistent herewith.

S. The matters provided for in this part are hereby declared and enacted to be justifications or excuses in the case of all charges to which they apply.

"We regard this as one of the most difficult as well as most important portions of the draft Code. . . . We do not think it desirable that, if a particular combination of circumstances arises of so unusual a character that the law has never been decided with reference to it, there should be any risks of a code being so framed as to deprive an accused person of a defence to which the common law entitles him, and that it might become the duty of the Judge to direct the jury that they must find him guilty, although the facts proved that he had a defence on the merits, and would have an undoubted claim to be pardoned by the Crown. While, therefore, digesting and declaring the law as applicable to the ordinary cases, we think that the common law, so far as it affords a defence, should be preserved in all cases not expressly provided for. This we have endeavoured to do by section 19 of the draft Code."(Sec. 7 ante), Imp. Comm. Rep.

CHILDREN UNDER SEVEN.

9. No person shall be convicted of an offence by reason of any act or omission of such person when under the age of seven years.

That is the common law: 4 Blacks. 23. No proof of the capacity of an infant under seven to commit a crime can be admitted: see R. v. Owen, Warb. Lead. Cas. 19.

CHILDREN BETWEEN SEVEN AND FOURTEEN.

10. No person shall be convicted of an offence by reason of an act or omission of such person when of the age of seven, but under the age of fourteen years, unless he was competent to know the nature and consequences of his conduct, and to appreciate that it was wrong.

Such an infant is presumed to be incapable to commit any crime until the contrary is proved, and such a proof must be clear and beyond all doubt: 4 Blacks. 23.

A boy under fourteen cannot, in law, commit a rape; section 266; nor the offence of carnally knowing a girl under fourteen, under section 269, R. v. Waite, [1892], 2 Q. B. 600, nor, any of the offences where carnal connection with a woman is a necessary ingredient of the offence, or any attempt to commit rape or any of the above mentioned offences: compare R. v. Eldershaw, 3 C. & P: 396 ; R. v. Groombridge, 7 C. & P. 582; R. v. Philips, 8 C. & P. 736; R. v. Jordan, 9 C. & P. 118; R. v. Brimilow, 2 Moo. 122, 1 Russ. 8; R. v. Allen, 1 Den. 364.

A person of the age of fourteen and upwards is presumed to have capacity to commit any crime until the contrary is proved: see R. v. Owen, Warb. Lead. Cas. 19; R. v. Vamplew, 3 F. & F. 520.

INSANITY.

11. No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility, or disease of the mind, to such an extent as to render him incapable of appreciating the nature and quality of the act or omission, and of knowing that such act or omission was wrong.

2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.

3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

See 3 Burn's Just. 180; 1 Russ. 11; R. v. Oxford, Warb. Lead. Cas. 21, and cases there cited; R. v. Davis, 14 Cox, 563; R. v. Dubois, 17 Q. L. R. 203; R. v. Dove, 3 Stephen's Hist. 426.

"Section 22 (sec. 11, ante), which relates to insanity, expresses the existing law. The obscurity which hangs over the subject cannot altogether be dispelled until our existing ignorance as to nature of the will and the mind, the nature of the organs by which they operate, the manner and degree in which those

operations are interfered with by disease, and the nature of the diseases which interfere with them, are greatly diminished.

"The framing of the definition has caused us much labour and anxiety; and though we cannot deem the definition to be altogether satisfactory, we consider it as satisfactory as the nature of the subject admits of. Much latitude must, in any case, be left to the tribunal which has to apply the law to the facts in each particular case.

It must be borne in mind, that although insanity is a defence which is applicable to any criminal charge, it is most frequently put forward in trials for murder, and for this offence the lawand we think wisely-awards upon conviction a fixed punishment which the Judge has no power to mitigate.

"In the case of any other offence if it should appear that the offender was afflicted with some unsoundness of mind, but not to such a degree as to render him irresponsible-in other words where the criminal element predominates though mixed in a greater or less degree with the insane element, the Judge can apportion the punishment to the degree of criminality, making allowances for the weakened or disordered intellect.

"But in a case of murder this can only be done by an appeal to the executive; and we are of opinion that this difficulty cannot be successfully avoided by any definition of insanity which would be both safe and practicable, and that many cases must occur which cannot be satisfactorily dealt with otherwise than by such an appeal."-Imp. Comm. Rep.

COMPULSION BY THREATS.

12. Except as hereinafter provided, compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for the commission, by a person subject to such threats, and who believes such threats will be executed, and who is not a party to any association or conspiracy, the being a party to which rendered him subject to compulsion, of any offence other than treason as defined in paragraphs a, b, c, d and e of sub-section one of section sixty-five, murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm, and arson; See R. v. Tyler, 8 C. & P. 616, Warb. Lead Cas. 31.

"There can be no doubt that a man is entitled to preserve his own life and limb; and, on this ground, he may justify much which otherwise would be punishable. The cases of a person setting up as a defence that he was compelled to commit a crime is of everyday occurrence. There is no doubt on the authorities that compulsion is a defence where the crime is not of a heinous character. But killing an innocent person, according to Lord Hale, can never be justified. He lays down the stern rule: If a man be desperately assaulted and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury, he will kill an innocent person there present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself than kill an innocent.' On the trials for high treason in 1746, the defence of the prisoners was in many cases that they were compelled to serve in the rebel army. The law was laid down somewhat more favourably for the prisoners than it had been before, as the defence of compulsion was stated to apply not merely to furnishing provisions to the rebel army, but even to joining and serving in that army. It was laid down (See Foster 14) that, The only force that doth excuse is force upon the person and present fear of death; and this force and fear of death must continue all the time the party remains with the rebels. It is incumbent on every man who makes force his defence, to show an actual force, and that he quitted the service as soon as he could.' It is noticeable that though most of those who set up this defence must have fought in actual battle and must have killed, or at least assisted in killing the loyalists, and so brought themselves within the stern rule laid down by Hale, it was never suggested that this made a difference. We have framed section 23 (sec. 12, ante) of our Draft Code, to express what we think is the existing law, and what at all events we suggest ought to be the law."-Imp. Comm. Rep.

As to homicide by necessity, see R. v. Dudley, 14 Q. B. D. 273, Warb. Lead. Cas. 102; United States v. Holmes, 1 Wall., jr., 1.

COMPULSION OF WIFE. (New).

13. No presumption shall be made that a married woman committing an offence does so under compulsion because she commits it in the presence of her husband.

This alters the law. All offences committed by a married woman in presence of her husband, except high treason and murder, were presumed to have been committed under coercion: R. v. Torpey, 12 Cox, 45, Warb. Lead. Cas. 26, and cases there cited: R. v. Buncombe, 1 Cox, 183; 1 Russ. 33, and Greaves' note (n).

IGNORANCE OF THE LAW.

14. The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

See R. v. Mailloux, 3 Pugs. (N. B.) 493; R. v. Reed, Car. & M. 308; R. v. Hall, 3 C. & P. 409; R. v. Hearn, cited in Warb. Lead. Cas. 204.

Where the criminal quality of an act depends upon its having been wilfully done the actual motive of the offender is immaterial: 7th Rep. Crim. L. Comm 1843, Art. 10. For criminal purposes, the intention to do the act exists where it is wilfully done. Intention and motive are not the same thing: 4th Rep. xv. and 7th Rep. 29.

In R. v. Crawshaw, Bell. 303, the jury found the defendant guilty, but that he did not know perhaps that he was acting contrary to law. But, said the court, the defendant's ignorance of the statute is no excuse for him. As to ignorance of fact, and the rule that "actus non facit reum nisi mens sit rea," see R. v. Prince, 13 Cox 138; R. v. Tolson, 16 Cox, 629, 23 Q. B. D. 168, Warb. Lead. Cas. 72, and cases there cited: R. v. Twose, Warb. Lead. Cas. 1; R. v. Hicklin, L. R. 3 Q. B. 360; Dyke v. Gower, 17 Cox, 421, and cases cited under section 283, post.

Though drunkenness is never an excuse for a crime, yet, where the intention of the guilty party is an element of the offence itself, the fact that the accused was intoxicated at the time may be taken into consideration by the jury in