(b.) from knowing that the act is 'wrong; [2or,

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

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

Illustrations.

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

(2.) A kills B knowing that he is killing B, and knowing that it is wrong to kill B; but his mind is so imbecile that he is unable to form such an estimate of the nature and consequences of his act as a person of ordinary intelligence would form. A's act is not a crime if the words within the first set of brackets are law. If they are not it is. (3.) A kills B knowing that he is killing B, and knowing that it is illegal to kill B; but under an insane delusion that the salvation of the human race will be obtained by his execution for the murder of B, and that God has commanded him (A) to produce that result by those means. A's act is a crime if the word "wrong" has the second of the two meanings ascribed to it in the note. It is not a crime if the word "wrong" has the first of those two meanings.

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

(5.) A suddenly stabs B under the influence of an impulse caused by disease, and of such a nature that a strong motive, as, for instance, the fear of his own immediate death, would have prevented the act. A's act is a crime whether (c.) is or is not law.

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

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

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

2 The parts of the article bracketed are doubtful.

ARTICLE 28.

PRESUMPTION OF SANITY.

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

is

upon

ARTICLE 29.

DRUNKENNESS.

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

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

Illustrations.

(1.) 2A, in a fit of voluntary drunkenness, shoots B dead, not knowing what he does. A's act is a crime.

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

(3.) 2A, in a fit of delirium tremens caused by voluntary drunkenness, kills B, mistaking him for a wild animal, attacking A. A's act is not a crime.

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

1 R. v. Oxford, 9 C. & P. 525; R. v. Stokes, 3 C. & K. 185; Draft Code, s. 22. 2 1 Hale, P. C. 32-3. Illustrations (1), (2), and (3), are founded on this passage.

3 R. v. Cruse, 8 C. & P. 546,

ARTICLE 30.

MARRIED WOMEN.

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

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

It does not apply to high treason or murder.

It probably does not apply to robbery.

It applies to uttering counterfeit coin.

It seems to apply to misdemeanors generally.

ARTICLE 31.

COMPULSION.

2 An act which if done willingly would make a person a principal in the second degree or an aider and abettor in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him or do him grievous bodily

3

11 Hale, P. C. 45; 1 Hawk. P. C. 4; R. v. Hughes, 1 Russ. Cr. 41; R. v. Atkinson, 1 Russ. Cr. 47; R. v. Smith, D. & B. 553; R. v. Archer, R. & M. 143 ; R. v. Brooks, Dear. 184; R. v. Wardroper, Bell, C. C. 249. As to felonies in general, see 1 Russ. Cr. 32-4. As to high treason, murder, and robbery, see 1 Hale, P. C. 45; Dalton, c. 157; 1 Hawk. P. C. 4; R. v. Buncombe, 1 Cox, C. C. 183; but as to robbery, see Mr. Carrington's argument in R. v. Cruse, 8 C. & P. 556. In R. v. Torpey, Mr. Russell Gurney, Recorder of London, held that the doctrine applied to robbery, 12 Cox, C. C. 48-9; cf. Draft Code, s. 23. As to misdemeanors in general, see note to R. v. Price, 8 C. & P. 20; and 1 Russ. Cr. p. 145, note (b), 5th ed.; see too R. v. Torpey, 12 Cox, C. C. 48-9. As to uttering, see R. v. Price, 8 C. & P. 19. As to false swearing, R. v. Dicks, 1 Russ. Cr. 16. As to the general doctrine, see Note I. The principle is not affected by the Married Women's Property Act, 45 & 46 Vict. c. 75.

2 Draft Code, s. 23.

31 Hale, P. C. 43-4, 49, and see Illustrations.

harm if he refuses; but threats of future injury, or the command of any one not the husband of the offender, do not excuse any offence.

1

Illustrations.

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

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

ARTICLE 32.

NECESSITY.

An act which would otherwise be a crime may be excused if the person accused can shew that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflcted by it was not disproportionate to the evil avoided.

Illustrations.

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

1 R. v. M'Growther, 18 St. Tr. 394 (A.D. 1746).

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

3 R. v. Stratton & Others, 21 St. Tr. 1045; see Lord Mansfield's judgment, pp. 1222-6.

1

(2.) 1 A and B, swimming in the sea after a shipwreck, gets hold of a plank not large enough to support both; A pushes off B, who is drowned. This is not a crime.

ARTICLE 33.

IGNORANCE OF LAW.

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

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

4

Illustrations.

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

5

(2.) * A, a poacher, sets wires for game, which are taken by B, a game

Bacon's Maxims, No. 5. The case has actually occured in the United States. See Commonwealth v. Holms, 1 Wall. Jr. 1, quoted at length in Wharton on Homicide, s. 560. In this case shipwrecked sailors and passengers escaping in a boat which could not hold all, the sailors threw some of the passengers overboard. The Court held that the passengers ought to have been preferred to the sailors, unless the presence of all the sailors was required for the common safety, but “under any circumstances it was held the proper method of determining who was to be the first victim out of the particular class was by ballot." I doubt whether an English Court would take this view. It would be odd to say that the two men on the raft were bound to toss up as to which should go.

2 Draft Code, 24.

3 See Illustration 3. See also Thompson v. Farrer, L. R. 9 Q. B. D. 444, Ex parte Barronet, 1 E. & B. 1.

5 R. v. Hale, 3 C. & P. 409. In R. v. Reed, Car. & Mar. 308, Coleridge, J., said: "Ignorance of the law cannot excuse any person, but at the same time when the question is with what intent a person takes, we cannot help looking into their state of mind, as if a person takes what he believes to be his own it is impossible to say he is guilty of felony.